Opinion
08-16-2017
The PEOPLE, etc., respondent, v. Trevone MURRELL, appellant.
Jillian S. Harrington, Staten Island, NY, for appellant. Madeline Singas, District Attorney, Mineola, NY (Judith R. Sternberg and Pamela Kelly–Pincus of counsel), for respondent.
Jillian S. Harrington, Staten Island, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Judith R. Sternberg and Pamela Kelly–Pincus of counsel), for respondent.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ.
Appeals by the defendant from three judgments of the Supreme Court, Nassau County (Berkowitz, J.), all rendered February 10, 2012, convicting him of burglary in the second degree under Indictment No. 562/11, criminal mischief in the third degree under Indictment No. 717/11, and assault in the second degree under Indictment No. 937/11, respectively, upon his pleas of guilty, and imposing sentences.
ORDERED that the judgment rendered February 10, 2012, convicting the defendant of burglary in the second degree under Nassau County Indictment No. 562/11 is reversed, on the law, the plea is vacated, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings; and it is further,
ORDERED that the judgment rendered February 10, 2012, convicting the defendant of assault in the second degree under Nassau County Indictment No. 937/11 is reversed, on the law, the plea is vacated, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings; and it is further,
ORDERED that the judgment rendered February 10, 2012, convicting the defendant of criminal mischief in the third degree under Nassau County Indictment No. 717/11 is affirmed.
Although the defendant validly waived his right to appeal, his claim with respect to the voluntariness of the pleas survives such a waiver (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Murphy, 114 A.D.3d 704, 705, 979 N.Y.S.2d 829 ; People v. Joseph, 103 A.D.3d 665, 959 N.Y.S.2d 261 ; People v. Ballinger, 12 A.D.3d 686, 687, 785 N.Y.S.2d 121 ).
The Supreme Court's failure to advise the defendant at the time of his pleas that both his sentence on the burglary conviction and his sentence on the assault conviction would include a period of postrelease supervision prevented his pleas to those crimes from being knowing, voluntary, and intelligent (see People v. Catu, 4 N.Y.3d 242, 245, 792 N.Y.S.2d 887, 825 N.E.2d 1081 ; see also People v. Cornell, 16 N.Y.3d 801, 802, 921 N.Y.S.2d 641, 946 N.E.2d 740 ; People v. Hill, 9 N.Y.3d 189, 191, 849 N.Y.S.2d 13, 879 N.E.2d 152 ). Accordingly, the judgments convicting the defendant of burglary in the second degree under Indictment No. 562/11 and assault in the second degree under Indictment No. 937/11 must be reversed, those pleas vacated, and the matters remitted to the Supreme Court, Nassau County, for further proceedings (see People v. Fuertes, 105 A.D.3d 974, 975, 962 N.Y.S.2d 916 ; People v.
Campbell, 102 A.D.3d 979, 958 N.Y.S.2d 615 ; People v. Weichow, 96 A.D.3d 883, 884, 946 N.Y.S.2d 479 ).
Contrary to the defendant's contention, however, the Supreme Court was not required to advise him at the time of his pleas that his sentence on the conviction of criminal mischief in the third degree would include a period of postrelease supervision, since the defendant faced an indeterminate term of imprisonment with respect to that conviction. Therefore, the court's failure to so advise the defendant with respect to his criminal mischief conviction did not render that plea unknowing, involuntary, or unintelligent (see People v. Catu, 4 N.Y.3d at 245, 792 N.Y.S.2d 887, 825 N.E.2d 1081 ).
The defendant's remaining contention has been rendered academic in light of our determination.