| People v Murrell |
| 2017 NY Slip Op 06195 [153 AD3d 730] |
| August 16, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Trevone Murrell, Appellant. |
Jillian S. Harrington, Staten Island, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Judith R. Sternberg and PamelaKelly-Pincus of counsel), for respondent.
Motion by the defendant (1) to amend his notice of appeal to include, in addition to thejudgment of conviction under Nassau County indictment No. 562/11, two additional judgmentsof conviction rendered February 10, 2012, under Nassau County indictment Nos. 717/11 and937/11, respectively, and (2) to amend the decision and order of this Court dated January 20,2016, to include the two additional judgments of conviction.
Upon the papers filed in support of the motion and the papers filed in relation thereto, itis
Ordered that the motion is granted; and it is further,
Ordered that the notice of appeal is deemed amended to include the judgments of convictionunder Nassau County indictment Nos. 717/11 and 937/11; and it is further,
Ordered that the Decision and Order of this Court dated January 20, 2016 (People v Murrell, 135 AD3d 882[2016]), in the above-entitled action is recalled and vacated (see 2017 NY Slip Op83046[U] [2017] [decided simultaneously herewith]), and the following decision and order issubstituted therefor, nunc pro tunc to January 20, 2016:
Appeals by the defendant from three judgments of the Supreme Court, Nassau County(Berkowitz, J.), all rendered February 10, 2012, convicting him of burglary in the second degreeunder indictment No. 562/11, criminal mischief in the third degree under indictment No. 717/11,and assault in the second degree under indictment No. 937/11, respectively, upon his pleas ofguilty, and imposing sentences.
Ordered that the judgment rendered February 10, 2012, convicting the defendant of burglaryin the second degree under Nassau County indictment No. 562/11 is reversed, on the law, theplea is vacated, and the matter is remitted to the Supreme Court, Nassau County, for furtherproceedings; and it is further,
Ordered that the judgment rendered February 10, 2012, convicting the defendant of assault inthe second degree under Nassau County indictment No. 937/11 is reversed, on the law, [*2]the plea is vacated, and the matter is remitted to the Supreme Court,Nassau County, for further proceedings; and it is further,
Ordered that the judgment rendered February 10, 2012, convicting the defendant of criminalmischief in the third degree under Nassau County indictment No. 717/11 is affirmed.
Although the defendant validly waived his right to appeal, his claim with respect to thevoluntariness of the pleas survives such a waiver (see People v Seaberg, 74 NY2d 1, 10[1989]; People v Murphy, 114AD3d 704, 705 [2014]; People vJoseph, 103 AD3d 665 [2013]; People v Ballinger, 12 AD3d 686, 687 [2004]).
The Supreme Court's failure to advise the defendant at the time of his pleas that both hissentence on the burglary conviction and his sentence on the assault conviction would include aperiod of postrelease supervision prevented his pleas to those crimes from being knowing,voluntary, and intelligent (see People vCatu, 4 NY3d 242, 245 [2005]; see also People v Cornell, 16 NY3d 801, 802 [2011]; People v Hill, 9 NY3d 189, 191[2007]). Accordingly, the judgments convicting the defendant of burglary in the second degreeunder indictment No. 562/11 and assault in the second degree under indictment No. 937/11 mustbe reversed, those pleas vacated, and the matters remitted to the Supreme Court, Nassau County,for further proceedings (see People vFuertes, 105 AD3d 974, 975 [2013]; People v Campbell, 102 AD3d 979 [2013]; People v Weichow, 96 AD3d 883,884 [2012]).
Contrary to the defendant's contention, however, the Supreme Court was not required toadvise him at the time of his pleas that his sentence on the conviction of criminal mischief in thethird degree would include a period of postrelease supervision, since the defendant faced anindeterminate term of imprisonment with respect to that conviction. Therefore, the court's failureto so advise the defendant with respect to his criminal mischief conviction did not render thatplea unknowing, involuntary, or unintelligent (see People v Catu, 4 NY3d at 245).
The defendant's remaining contention has been rendered academic in light of ourdetermination. Balkin, J.P., Chambers, Cohen and Hinds-Radix, JJ., concur.