Opinion
SCI No. 99-0741.
Decided May 16, 2008.
IAN P. SPIER, ESQ., Attorney for Defendant, White Plains, New York.
HON. JANET DiFIORE, District Attorney, Westchester County, 111 Dr. Martin Luther King, Jr. Boulevard, White Plains, New York, By: Joseph M. Latino, Esq.
Defendant, by notice of motion dated January 11, 2008, moves for an order vacating his judgment of conviction pursuant to Criminal Procedure Law § 440.10(1)(h) on the grounds that the judgment was obtained in violation of his constitutional right to due process.
FACTUAL BACKGROUND
On November 10, 1999, defendant appeared with counsel in the Westchester County Court (Perone, J.), at which time he entered a plea of guilty to one count of attempted robbery in the first degree. In accordance with a negotiated plea agreement, the Court indicated that a determinate term of 3 ½ years and a $155 surcharged would be imposed at the time of sentencing. Defendant indicated that he understood the plea offer and wished to accept it. During the plea colloquy, the assistant district attorney further advised defendant that a permanent order of protection would be issued in favor of the victim. No mention was made during the plea proceeding of an additional term of post-release supervision.
The underlying criminal action arose from an armed robbery of a convenience store located in the Village of Pelham, New York.
A copy of the minutes from the plea proceeding is attached to defendant's motion as Exhibit B.
On April 27, 2000, defendant appeared for sentencing and the agreed-upon determinate term of incarceration was imposed. While the defendant has been unable to obtain a copy of the sentencing minutes, the Court notes that no period of post-release supervision is reflected on the Sentence and Commitment.
A copy of the Sentence and Commitment form dated April 27, 2000 is attached to defendant's motion as Exhibit D.
Defendant was released to supervision on July 16, 2003, and is currently incarcerated in the Bare Hill Correctional Facility pursuant to a violation of the conditions of his release. Defendant unsuccessfully challenged the imposition of the post-release supervision by the New York State Department of Corrections in a proceeding pursuant to CPLR article 70. Following the denial of this application, and in accordance with the suggestion of the Dutchess County Supreme Court, defendant commenced the instant proceeding to vacate the judgment of conviction on the sole ground that he was not informed of the period of post-release supervision prior to the entry of his plea of guilty.
A copy of the December 20, 2007 decision of the Dutchess County Supreme Court is attached as an exhibit to the People's affirmation in opposition.
LEGAL ANALYSIS
It is now well-settled law in the State of New York that post-release supervision is a direct consequence of a criminal conviction ( People v. Catu , 4 NY3d 242 , 244, 792 NYS2d 887, 825 NE2d 1081; People v. Van Deusen , 7 NY3d 744 , 745, 819 NYS2d 854, 853 NE2d 223; People v. Louree , 8 NY3d 541 , 838 NYS2d 18, 869 NE2d 18; People v. Hill , 9 NY3d 189 , 191, 849 NYS2d 13, 879 NE2d 152, cert. denied ___ S.Ct. ___, 2008 WL 394022; People v. Sparber, ___ NY3d ___, 2008 NY Slip Op. 03946). Consequently, when a court fails to inform a defendant pleading guilty to a determinate sentence of the post-release component of that sentence, the plea cannot be deemed knowing, voluntary and intelligent ( Catu, 4 NY3d at 245), and defendant must be "returned to his or her uncertain status before the negotiated bargain" ( Hill, 9 NY3d at 191).
In opposition to the defendant's motion to vacate the judgment of conviction, the People argue that, pursuant to the Court of Appeals' holding in Louree, ( 8 NY3d 541), defendant's claim of a Catu violation is not properly raised in a motion pursuant to CPL 440.10. In Louree, no mention of post-release supervision was made at the time the defendant entered his plea of guilty to attempted criminal possession of a weapon in the third degree. Based upon defendant's failure to fulfill any of the prerequisites for a more lenient sentence, the court sentenced him to the maximum term of seven years ( Id. at 543). On his direct appeal, the Appellate Division, Second Department, declined to review the issue of post-release supervision on the ground that it was unpreserved for appellate review based upon defendant's failure to move either to withdraw his plea or vacate the judgment of conviction on this basis ( Id. at 544).
In reversing the conviction, the Court of Appeals held that since the omission of the advisement of post-release supervision was clear from the face of the record, it was not properly raised in a CPL article 440 motion to vacate the judgment ( Id. at 546). In a footnote, the Court opined that although the issue of the trial judge's failure to advise defendant of post-release supervision was raised in the context of a CPL 440.10 motion in Catu, since the People did not argue this ground the Court had no occasion to decide whether a defendant could properly raise this by way of an Article 440 motion ( Id.).
It would appear from the Court of Appeals' decision in Louree that post-conviction relief pursuant to CPL § 440.10 is not available to the defendant in the instant matter. However, approximately five months subsequent to the decision in Louree, the Court of Appeals rendered its decision in Hill. In Hill, the defendant plead guilty to rape in the first degree in full satisfaction of the indictment and was sentenced to a determinate term of 15 years. No mention was made, either during the plea or during sentencing, of an additional five-year term of post-release supervision ( Hill, 9 NY3d at 190). Approximately two years after the imposition of the sentence, defendant moved pursuant to CPL § 440.10 to vacate his judgment of conviction. The Supreme Court, New York County denied the motion, and the Appellate Division, First Department affirmed ( People v. Hill , 39 AD3d 1 , 830 NYS2d 33).
In reversing, the Court of Appeals reiterated its prior holdings in Catu, Van Deusen and Louree that a period of post-release supervision is a direct consequence of a plea and, therefore, "[w]hen a court fails to so advise the defendant, the plea cannot be deemed knowing, voluntary and intelligent, and defendant may withdraw the plea and be returned to his or her uncertain status before the negotiated bargain" ( Hill, 9 NY3d at 191). The Court stressed that "Catu, Van Deusen and Louree made clear that the courts violated the defendant's due process rights not the defendant's sentencing expectations," thus, the defendants' involuntary guilty pleas were vacated in order to "remedy the constitutional violations" ( Id. at 193). In rendering its decision, the Court made no mention of its prior holding that a Catu objection could not be raised in a CPL article 440 motion.
While it is true that defendant could have challenged the sufficiency of the allocution on direct appeal had he been aware of the post-release supervision component (see Van Deusen, 7 NY3d 744; Louree, 8 NY3d 541), he was not made aware of this component of his sentence until he was released from a state correctional facility and, therefore, he was precluded from appealing the judgment of conviction (see CPL § 460.10[a]). It would appear inconceivable that the Court of Appeals would deny those individuals who are unaware of the post-release supervision component until they are released from prison a procedural vehicle by which to challenge a court's failure to fulfill its obligation to advise a defendant of a direct consequence of pleading guilty. The Court is persuaded that the inequitable result of denying such individuals the right to challenge the validity of his or her plea was acknowledged, albeit tacitly, by the Court of Appeals' determination of the merits of the defendant's appeal in Hill.
Defendant herein, like the defendant in Hill, did not become aware of the post-release supervision component of the sentence until after the time for a direct appeal had expired. It is clear from the minutes of the plea proceeding that defendant was not made aware of either the statutory range of the period of post-release supervision that would follow his term of incarceration or the particular period to which he would be subjected. Therefore, defendant did not possess the requisite information to knowingly waive his rights and, like the defendant in Hill, he must be permitted to withdraw his plea. To hold otherwise would penalize defendant for the court's failure to fulfill its constitutional obligation.
Accordingly, it is hereby
ORDERED, that defendant's motion to vacate his judgment is granted; and it is further
ORDERED, that defendant be produced before this Court on May 29, 2008 for further proceedings on Superior Court Information No.: 741-99.
The Court considered the following papers on this application: 1) notice of motion dated January 11, 2008, with accompanying affirmation in support thereof; 2) the People's affirmation in opposition dated February 7, 2008 with accompanying affirmation and memorandum of law; and 3) defendant's reply affirmation dated February 12, 2008.