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People v. Garcia

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 14, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
RAYMUNDO GARCIA, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered October 26, 2007, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 31/2 years, unanimously reversed, on the law, the plea vacated and the matter remanded for further proceedings.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Andrias, Buckley, DeGrasse, JJ.

1050/07

The court's failure to inform defendant at his plea allocution that he would be subject to a period of postrelease supervision requires reversal of the conviction (People v Catu, 4 NY3d 242 [2005]). In pleading guilty, defendant was entitled to rely on the court's sentence promise, which, as applicable here, was a prison term of 31/2 years with no mention of anything else. Accordingly, the fact that the prosecutor mentioned postrelease supervision earlier in the plea proceeding does not warrant a different result. A court's failure to warn a defendant prior to pleading guilty of the sentencing consequences of the plea is not subject to harmless error analysis (People v Hill, 9 NY3d 189, 192 [2007], cert denied __ US __, 128 S Ct 2430 [2008]; see also People v Van Deusen, 7 NY3d 744, 745-746 [2006]). Similarly, there is no reason to depart from the rule that a defendant may raise a Catu issue for the first time on appeal (see People v Louree, 8 NY3d 541 [2007]). We have considered and rejected the People's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090414

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