Opinion
12-29-2016
The PEOPLE of the State of New York, Respondent, v. Michael KATSAFAROS, Appellant.
Alexander W. Bloomstein, Hillsdale, for appellant. Paul Czajka, District Attorney, Hudson (Trevor O. Flike of counsel), for respondent.
Alexander W. Bloomstein, Hillsdale, for appellant.
Paul Czajka, District Attorney, Hudson (Trevor O. Flike of counsel), for respondent.
Before: GARRY, J.P., EGAN JR., ROSE, CLARK and MULVEY, JJ.
GARRY, J.P.Appeal from a judgment of the County Court of Columbia County (Koweek, J.), rendered May 6, 2014, convicting defendant upon his plea of guilty of the crime of rape in the second degree.
Defendant, then 62 years old, pleaded guilty to the sole count of an indictment charging him with rape in the second degree and admitted that he had sexual intercourse with a person who was under the age of 15. A waiver of appeal was set forth as a term of the plea agreement during the allocution, and defendant signed a written plea document that included a qualified waiver of appeal. The People agreed not to make a sentencing recommendation; however, County Court orally advised defendant that the maximum potential punishment would be a prison term of seven years followed by three years of postrelease supervision, and this statement was repeated in the written document. Defendant was thereafter sentenced to a prison term of five years with 10 years of postrelease supervision. Defendant appeals.
County Court failed to adequately distinguish the right to appeal from those rights that are automatically forfeited upon a guilty plea, thus rendering defendant's appeal waiver invalid (see People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Moreover, as the People concede, defendant retained the right to appeal from his sentence, as the plea document provided that he had that right if his sentence was not jointly recommended (see People v. Gonzalez, 97 A.D.3d 985, 985, 947 N.Y.S.2d 919 [2012] ).
Defendant contends that the sentence was harsh and excessive. In view of the serious nature of defendant's crime, however, we find no extraordinary circumstances or abuse of discretion warranting a modification of the prison term in the interest of justice (see People v. Rought, 90 A.D.3d 1247, 1249, 934 N.Y.S.2d 617 [2011], lv. denied 18 N.Y.3d 962, 944 N.Y.S.2d 490, 967 N.E.2d 715 [2012] ; People v. Davis, 72 A.D.3d 1274, 1276, 899 N.Y.S.2d 403 [2010] ).
There is, however, a separate issue relative to the term of postrelease supervision. Defendant's guilty plea was, in part, induced by County Court's specific statement that the period of postrelease supervision would not exceed three years. Without explanation, the court subsequently imposed a 10–year period of postrelease supervision. That period was within the authorized range for defendant's offense (see Penal Law §§ 70.02[1][c] ; 70.45[2–a][d]; 70.80 [1][a] ), but nothing in the record suggests that the previously stated shorter period had become improvident as a result of changed circumstances or new information (cf. People v. Selikoff, 35 N.Y.2d 227, 240, 360 N.Y.S.2d 623, 318 N.E.2d 784 [1974], cert. denied 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822 [1975] ). Defendant was not given an opportunity to withdraw his plea before his sentence was imposed, did not move to withdraw his plea, and has represented to this Court that he does not wish to do so. Under these circumstances, we find that County Court is bound by its prior statement and that defendant is entitled to specific performance of the plea agreement (see People v. Carner, 142 A.D.2d 789, 790, 531 N.Y.S.2d 50 [1988], lv. denied 72 N.Y.2d 955, 534 N.Y.S.2d 669, 531 N.E.2d 301 [1988] ). As the error was not preserved, we exercise our interest of justice jurisdiction to reduce the period of postrelease supervision to three years (see People v. Vinson, 73 A.D.3d 590, 590, 899 N.Y.S.2d 849 [2010], lv. denied 15 N.Y.3d 810, 908 N.Y.S.2d 170, 934 N.E.2d 904 [2010] ; People v. Bradshaw, 271 A.D.2d 63, 71, 711 N.Y.S.2d 656 [2000], lv. denied 95 N.Y.2d 967, 722 N.Y.S.2d 485, 745 N.E.2d 405 [2000] ; People v. Jones, 99 A.D.2d 1, 3, 472 N.Y.S.2d 460 [1984] ).
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the period of postrelease supervision to three years, and, as so modified, affirmed.
EGAN JR., ROSE, CLARK and MULVEY, JJ., concur.