Opinion
24 KA 17–02056
02-01-2019
The PEOPLE of the State of New York, Respondent, v. Bryan A. JORDAN, Defendant–Appellant.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR DEFENDANT–APPELLANT. CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR DEFENDANT–APPELLANT.
CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND TROUTMAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, and the matter is remitted to Niagara County Court for further proceedings on the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16[1] ). As defendant contends and the People correctly concede, vacatur of the plea and reversal of the judgment of conviction are required because County Court failed to properly advise defendant, at the time of the plea, of the period of postrelease supervision that would be imposed at sentencing (see People v. Turner , 24 N.Y.3d 254, 259, 997 N.Y.S.2d 671, 22 N.E.3d 179 [2014] ; People v. Catu , 4 N.Y.3d 242, 245, 792 N.Y.S.2d 887, 825 N.E.2d 1081 [2005] ; People v. Jordan , 67 A.D.3d 1406, 1407–1408, 891 N.Y.S.2d 768 [4th Dept. 2009] ). Although defendant also contends that his waiver of the right to appeal is invalid, we note that resolution of that issue "is of no moment inasmuch as defendant's contention with respect to postrelease supervision would survive even a valid waiver of the right to appeal" ( Jordan , 67 A.D.3d at 1408, 891 N.Y.S.2d 768 ). In light of our determination, we need not address defendant's remaining contention.