| People v Binion |
| 2015 NY Slip Op 09142 [134 AD3d 1252] |
| December 10, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Nathan D. Binion, Appellant. |
Susan Patnode, Rural Law Center of New York, Albany (George J. Hoffman ofcounsel), for appellant.
Mary E. Rain, District Attorney, Canton (Ramy Louis of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered February 14, 2014, convicting defendant upon his plea of guiltyof the crime of criminal possession of a controlled substance in the fifth degree.
In satisfaction of a one-count indictment, defendant pleaded guilty to criminalpossession of a controlled substance in the fifth degree and waived his right to appeal.Pursuant to the plea agreement, County Court agreed to place defendant on interimprobation for a period of one year and explained that, if successful, he would besentenced to felony probation. Defendant was advised, however, that if he failed to abideby the terms of his interim probation, he could be sentenced, as a second felony offender,to as much as four years in prison. County Court thereafter placed defendant on interimprobation and sentencing was adjourned to January 2014.
In January 2014, defendant was charged with violating the terms of his probation byconsuming alcohol and being arrested for a new crime. Defendant then appeared beforeCounty Court for sentencing and was sentenced as a second felony offender to four yearsin prison to be followed by two years of postrelease supervision. Defendant now appeals,arguing that his plea was not knowing, voluntary and intelligent because he was notadvised of the mandatory postrelease supervision component of his sentence.
We reverse. Initially, defendant's challenge to the voluntariness of his plea surviveshis [*2]otherwise valid waiver of the right to appeal (see People v Bolivar, 118AD3d 91, 93 [2014]; People v Brown, 107 AD3d 1303, 1304 [2013]). Moreover,it was not necessary for defendant to preserve his challenge to the imposition ofpostrelease supervision under these circumstances (see People v Turner, 24 NY3d 254, 258 [2014]; People v Cornell, 16 NY3d801, 802 [2011]; People vLouree, 8 NY3d 541, 545-546 [2007]). Turning to the merits, it is well settledthat, for a defendant's plea to be knowingly, voluntarily and intelligently entered into, acourt must advise him or her of the direct consequences of a plea prior to sentencing,including the existence and duration of any postrelease supervision requirement (see People v Catu, 4 NY3d242, 245 [2005]; People vBrewington, 127 AD3d 1248, 1249 [2015]; People v Thomas, 68 AD3d 1445, 1446-1447 [2009]).Here, as the People concede, at the time of his plea, defendant was not properly madeaware of the postrelease supervision component of his sentence. Accordingly,defendant's decision to plead guilty was not a knowing, voluntary and intelligent oneand, therefore, the judgment of conviction must be reversed (see People v Brown,107 AD3d at 1304).
In light of this result, we need not reach defendant's alternative claim that thesentence imposed was harsh and excessive.
McCarthy, Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of St. Lawrence County forfurther proceedings not inconsistent with this Court's decision.