| People v Chander |
| 2014 NY Slip Op 00235 [113 AD3d 697] |
| January 15, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Vipan Chander, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, EllenC. Abbot, and Daniel Bresnahan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Erlbaum, J.), rendered April 4, 2011, convicting him of assault in the second degree,upon his plea of guilty, and imposing sentence.
Ordered that the judgment is reversed, on the law, the plea is vacated, and the matteris remitted to the Supreme Court, Queens County, for further proceedings on theindictment.
Based on the record before this Court, we reject the defendant's contention that theSupreme Court did not have jurisdiction over this criminal action (see generallyCPL 100.05, 180.10 [1], [2]; 190.50).
The defendant also argues that his plea was not knowingly, voluntarily, andintelligently entered because the Supreme Court failed to adequately advise him that hewould not be permitted to withdraw his plea if he violated a condition of the pleaagreement. Contrary to the defendant's contention, the record, taken as a whole, indicatesthat the defendant was informed that he would be subjected to an enhanced sentence,without the option of withdrawing his plea, in the event that he failed to comply with theconditions of the plea (seePeople v Akhtar, 13 AD3d 383, 383-384 [2004]; People v Hughes, 260AD2d 657, 658 [1999]; People v Gibbs, 161 AD2d 661, 662 [1990]). Based onthe record, there is no basis upon which the defendant might have misconstrued themeaning of the Supreme Court's warning (see People v Fecu, 61 AD3d 991 [2009]; People vAkhtar, 13 AD3d at 384; cf. Innes v Dalsheim, 864 F2d 974 [1988];People v Elliot, 204 AD2d 565 [1994]).
The defendant also challenges his plea on the basis that the court made no mention ofpostrelease supervision at the time he entered into the plea agreement. Contrary to thePeople's contention, under the circumstances of this case, the defendant's claim is notforeclosed based on the defendant's failure to make this argument in his post-allocutionmotion to withdraw his plea of guilty (see People v Louree, 8 NY3d 541 [2007]), or as a result ofhis failure to object when the court imposed a sentence which included a period ofpostrelease supervision (seePeople v McAlpin, 17 NY3d 936, 938 [2011]).
Postrelease supervision is a direct consequence of a conviction (see People vCatu, [*2]4 NY3d 242 [2005]). Thus, when adefendant pleads guilty and the terms of the plea agreement provide that the defendant'sbreach of the conditions of the plea will result in an enhanced sentence that may subjectthe defendant to a period of postrelease supervision, the court must advise the defendantthat the sentence he or she will receive upon violating the conditions of the plea mayinclude a period of postrelease supervision (see People v McAlpin, 17 NY3d at937-938). Since the Supreme Court failed to advise the defendant of the inclusion ofpostrelease supervision in an enhanced sentence, the defendant's plea was not knowingly,voluntarily, and intelligently entered, and vacatur of the plea is appropriate (see id.at 938).
In light of the foregoing determination, the defendant's remaining contentions havebeen rendered academic. Rivera, J.P., Balkin, Hall and Sgroi, JJ., concur.