Opinion
1051 KA 16–01113
10-05-2018
The PEOPLE of the State of New York, Respondent, v. Joseph TETA, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE, PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP, NEW YORK CITY (HARRY M. JACOBS OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE, PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP, NEW YORK CITY (HARRY M. JACOBS OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
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 Onondaga County Court for further proceedings on the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of three counts each of criminal sale of a controlled substance in the third degree ( Penal Law § 220.39[1] ), criminal possession of a controlled substance in the third degree (§ 220.16[1] ), and criminal possession of a controlled substance in the seventh degree (§ 220.03). We agree with defendant that his purported waiver of the right to appeal is invalid. "County Court failed to obtain a knowing and voluntary waiver of the right to appeal at the time of the plea" ( People v. Mobayed, 158 A.D.3d 1221, 1222, 70 N.Y.S.3d 267 [4th Dept. 2018], lv. denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ). Moreover, "the written waiver of the right to appeal that [defendant] signed as part of the ‘treatment court contract,’ [a day] after he pleaded guilty, does not constitute a valid waiver of the right to appeal" ( People v. Brown, 140 A.D.3d 1682, 1683, 32 N.Y.S.3d 788 [4th Dept. 2016], lv denied 28 N.Y.3d 969, 43 N.Y.S.3d 257, 66 N.E.3d 3 [2016] ).
Furthermore, we agree with defendant that the court failed to fulfill its obligation to advise him, at the time of the plea, that the sentences imposed upon his conviction of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree would include periods of postrelease supervision (see People v. Catu, 4 N.Y.3d 242, 244–245, 792 N.Y.S.2d 887, 825 N.E.2d 1081 [2005] ). We therefore reverse the judgment and vacate defendant's plea (see People v. Cornell, 16 N.Y.3d 801, 802, 921 N.Y.S.2d 641, 946 N.E.2d 740 [2011] ). In light of our determination, we do not address defendant's remaining contention.