| People v Shanks |
| 2014 NY Slip Op 01697 [115 AD3d 538] |
| March 18, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Ronald Shanks, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin of counsel), forrespondent.
Judgment, Supreme Court, New York County (Arlene R. Silverman, J. at hearing;Bruce Allen, J. at plea and motion to withdraw plea; Maxwell Wiley, J. at sentencing),rendered September 23, 2009, convicting defendant of criminal sale of a controlledsubstance in the third degree, and sentencing him, as a second felony drug offenderpreviously convicted of a violent felony, to a term of six years, with 1½ years'postrelease supervision, unanimously reversed, on the law, the plea vacated, the fullindictment reinstated, and the matter remanded for further proceedings.
Defendant's plea agreement provided that he would receive a sentence of six years.During the plea allocution, the court noted that defendant would also receive a term ofpostrelease supervision in addition to the six-year prison term. The court did not,however, specify the length of the term of PRS to be imposed. The first time the courtever informed defendant of the length of the term of PRS was when it actually imposedsentence.
Although defendant moved to withdraw his plea, he did so on grounds unrelated toPRS, and, for the first time on appeal, he now challenges the voluntariness of his plea onthe ground of the court's failure to advise him of the length of the PRS term.Nevertheless, defendant was not required to preserve this issue. Since the plea court"failed to advise defendant of the specific term of PRS. . . a postallocutionmotion was not required to challenge the sufficiency of the plea" (People v Boyd, 12 NY3d390, 393 [2009]; see alsoPeople v Louree, 8 NY3d 541, 545-546 [2007]). The prosecutor's remarks mademoments before sentencing did not constitute the type of advice to defendant of the PRSterm that would trigger a duty to preserve the issue (see People v Rivera, 91 AD3d 498 [1st Dept 2012],appeal withdrawn 18 NY3d 961 [2012]).
Because PRS is a direct consequence of a conviction (People v Catu, 4 NY3d242, 244 [2005]), the failure of the court to specify the length of the PRS termrenders the plea allocution defective (see People v Boyd, 12 NY3d at 393; see also People v McAlpin, 17NY3d 936 [2011]).
In view of this determination, we find it unnecessary to reach any other issues, exceptthat we find that defendant's suppression motion was properly denied (see e.g. People v Dickerson, 20 AD3d359 [1st Dept 2005], lv denied 5 NY3d 852 [2005]).Concur—Mazzarelli, J.P., Sweeny, Andrias, DeGrasse and Richter, JJ.