Opinion
2014-02-7
The PEOPLE of the State of New York, Respondent, v. Charles M. LEISTMAN, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him, upon his plea of guilty, of course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][a] ), defendant contends that the plea was involuntary because County Court failed to inform him that a period of postrelease supervision (PRS) would be imposed. Although defendant failed to move to withdraw the plea or to vacate the judgment of conviction, it is well settled that, “ ‘where a trial judge does not fulfill the obligation to advise a defendant of [PRS] during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a postallocution motion’ ” (People v. Cornell, 16 N.Y.3d 801, 802, 921 N.Y.S.2d 641, 946 N.E.2d 740; see People v. Boyd, 12 N.Y.3d 390, 393, 880 N.Y.S.2d 908, 908 N.E.2d 898). It is also well settled that the court “has the constitutional duty to advise a defendant of the direct consequences of a guilty plea, including any period of [PRS] that will be imposed as part of the sentence,” and “ ‘[t]he failure of a court to advise of [PRS] requires reversal of the conviction’ ” (Cornell, 16 N.Y.3d at 802, 921 N.Y.S.2d 641, 946 N.E.2d 740, quoting People v. Catu, 4 N.Y.3d 242, 245, 792 N.Y.S.2d 887, 825 N.E.2d 1081). Here, as the People correctly concede, the record does not establish that the court advised defendant when he pleaded guilty that the sentence would include a period of PRS. To the contrary, the record establishes that the People indicated that they would request a sentence of at least 10 years in prison, and the court made no sentence promise other than to indicate that defendant “will be sentenced to state prison.” Because the court “failed to advise defendant prior to the entry of the plea that his sentence would include a period of postrelease supervision, ... his plea was not knowingly, voluntarily and intelligently entered” (People v. Rajab, 79 A.D.3d 1718, 1719, 913 N.Y.S.2d 625; see People v. Hill, 9 N.Y.3d 189, 191–192, 849 N.Y.S.2d 13, 879 N.E.2d 152, cert. denied553 U.S. 1048, 128 S.Ct. 2430, 171 L.Ed.2d 257; Catu, 4 N.Y.3d at 245, 792 N.Y.S.2d 887, 825 N.E.2d 1081). We therefore reverse the judgment, vacate the plea, and remit the matter to County Court for further proceedings on the indictment.
Defendant's remaining contentions are moot in light of our determination.
It 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 Monroe County Court for further proceedings on the indictment.