Opinion
2011-12-27
The PEOPLE, etc., respondent, v. Devendra SINGH, appellant.
Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Daniel Bresnahan of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Daniel Bresnahan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Wong, J., at plea; Mullings, J., at sentence), rendered June 18, 2008, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is reversed, on the law, the plea is vacated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings in accordance herewith.
As the People correctly concede, the plea minutes reveal that the defendant was not advised, prior to entering his plea of guilty, that his determinate term of imprisonment would be followed by a mandatory period of postrelease supervision. Therefore, the judgment of conviction must be reversed and the defendant's plea of guilty must be vacated ( see 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, cert. denied 553 U.S. 1048, 128 S.Ct. 2430, 171 L.Ed.2d 257; People v. Louree, 8 N.Y.3d 541, 544–545, 838 N.Y.S.2d 18, 869 N.E.2d 18; People v. Catu, 4 N.Y.3d 242, 245, 792 N.Y.S.2d 887, 825 N.E.2d 1081; People v. Peck, 78 A.D.3d 1199, 1200, 911 N.Y.S.2d 642; People v. Lindsay, 72 A.D.3d 845, 846, 900 N.Y.S.2d 91; People v. Wilcox, 70 A.D.3d 1059, 1059, 894 N.Y.S.2d 763).
While the People request that the matter be remitted pursuant to Penal Law § 70.85 so that the defendant may be resentenced, which resentence would not include a period of postrelease supervision, the plain language of that statute demonstrates that it is not applicable where, as here, the sentencing court explicitly imposed a period of postrelease supervision at sentencing ( see People v. Puntervold, 60 A.D.3d 1090, 1090–1091, 875 N.Y.S.2d 796; see also People v. Rucker, 67 A.D.3d 1126, 1127–1128, 888 N.Y.S.2d 313; People v. Montanez, 55 A.D.3d 372, 372–373, 866 N.Y.S.2d 33). We also decline the People's request that we invoke Judiciary Law § 2–b(3), in effect, to reach the same result that Penal Law § 70.85 would produce, if applicable. Judiciary Law § 2–b(3) provides that “[a] court of record has power ... to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it.” By enacting Judiciary Law § 2–b(3), the Legislature has afforded the courts the authority to “fashion necessary procedures consistent with constitutional, statutory, and decisional law” ( People v. Wrotten, 14 N.Y.3d 33, 37, 896 N.Y.S.2d 711, 923 N.E.2d 1099, cert denied ––– U.S. ––––, 130 S.Ct. 2520, 177 L.Ed.2d 316 [2010] ). Implementing Judiciary Law § 2–b(3) in the manner advocated by the People would be contrary to, rather than consistent with, the existing statutory and decisional law on this issue.