| People v James |
| 2018 NY Slip Op 02805 [160 AD3d 984] |
| April 25, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kieane James, Appellant. |
Jason M. Bernheimer, Katonah, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Christine DiSalvo andRaffaelina Gianfrancesco of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Anne E.Minihan, J.), rendered July 13, 2015, convicting him of attempted criminal possession of acontrolled substance in the fifth degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is reversed, on the law, the plea is vacated, and the matter isremitted to the County Court, Westchester County, for further proceedings in accordanceherewith.
At an appearance on March 30, 2015, the County Court placed a proposed plea agreement onthe record, which included a promised sentence of two years in state prison to be followed by oneyear of postrelease supervision. After a two-week adjournment to allow the defendant to considerthe proposed plea agreement, the defendant returned to the court to enter his plea of guilty. Theminutes of the plea proceeding reveal that an off-the-record conference was held that day, duringwhich the court indicated what the promise was regarding the plea and sentence. During the pleaproceeding, the defendant acknowledged on the record that he had heard and understood whatwas said at that conference regarding his sentence. However, while at the outset of the pleaproceedings the prosecutor mentioned that the defendant was "looking at two years State Prison,"no mention of postrelease supervision was made on the record at the time of the defendant's plea.Thereafter, the first mention of postrelease supervision was made at the conclusion of thesentencing proceeding, when the court imposed the sentence.
Contrary to the People's contention, under the circumstances of this case, the defendant'sclaim that his plea of guilty was not knowingly or voluntarily entered did not need to bepreserved for appellate review (seePeople v Turner, 24 NY3d 254, 259 [2014]; People v Boyd, 12 NY3d 390, 393 [2009]; People v Louree, 8 NY3d 541, 546[2007]; People v Catu, 4 NY3d242, 245 [2005]).
A trial court has the constitutional duty to advise a defendant, before pleading guilty, of thedirect consequences of a plea of guilty, including any period of postrelease supervision (see People v Cornell, 16 NY3d801, 802 [2011]; People v Catu, 4 NY3d at 244-245). Although the court is not [*2]required to engage in any particular litany when allocuting thedefendant, the record must be clear that the plea represents a voluntary and intelligent choiceamong the alternative courses of action open to the defendant (see People v Catu, 4 NY3dat 245). Here, the record does not make clear that at the time the defendant entered his plea, hewas aware that the terms of the County Court's promised sentence included a period ofpostrelease supervision (see People v Cornell, 16 NY3d at 802). Accordingly, thejudgment must be reversed, the plea vacated, and the matter remitted to the County Court,Westchester County, for further proceedings. Leventhal, J.P., Austin, Cohen, Barros andChristopher, JJ., concur.