The opinion of the court was delivered by: Ciparick, J.
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.
On August 20, 2004, defendant pleaded guilty to two counts of robbery in the first-degree (Penal Law § 160.15) in full satisfaction of two separate indictments alleging that he participated in four separate gunpoint robberies of Cosi restaurants in Manhattan. In exchange, defendant would receive concurrent determinate sentences of 12 years on each count. After defendant's plea allocution, the People brought to Supreme Court's attention the fact that the PRS component of defendant's sentences had not been mentioned, and the court replied, "I don't because it's mandatory." The judge then asked defendant "Do you understand that there is a post-release supervision that's mandatory?" Defendant responded that he did*fn1. On September 21, 2004, when defendant appeared for sentencing, Supreme Court failed to pronounce his PRS terms in accordance with Criminal Procedure Law §§ 380.20 and 380.40.
On defendant's appeal, the Appellate Division, with one Justice dissenting, reversed, vacated defendant's plea and sentences and reinstated both indictments. The majority concluded that defendant was deprived of a complete understanding of the implications of entering a guilty plea because neither Supreme Court nor the People properly advised him of the PRS components of his sentences. Specifically, the majority determined that defendant could not knowingly, voluntarily and intelligently decide to accept the plea without knowing the duration of the PRS. Applying our recent precedents in People v Catu (4 NY3d 242 ); People v Van Deusen (7 NY3d 744 ); People v Louree (8 NY3d 541 ) and People v Hill (9 NY3d 189 ) the Appellate Division held that the appropriate remedy was vacatur of the plea. The dissent asserted that defendant's claim was not preserved for appellate review and declined to review it in the interest of justice. A Justice of the Appellate Division granted leave and we now modify.
In Catu we stated: "a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction" (4 NY3d at 245).
Further, we determined in People v Louree, that a defendant need not preserve the objection, "where a trial judge does not fulfill the obligation to advise a defendant of postrelease supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a postallocution motion" (8 NY3d 541 at 545-546).
Here, although Supreme Court mentioned that the sentence would include PRS at the time of the plea, the court failed to advise defendant of the specific term of PRS a deficiency that is apparent from the record of the plea proceeding. Contrary to a dissenting colleague's view that the comments made by the trial judge were sufficient to enable defendant to move to withdraw his plea (see Smith, J., dissenting op at 3), we find a post allocution motion was not required to challenge the sufficiency of the plea. This does not complete the analysis of defendant's claim, however.
In People v Sparber (10 NY3d 457 ), we addressed the proper remedy where the sentencing court failed to pronounce the PRS component of the sentence. We noted that "the relief that defendants request[ed]expungement of their PRS termswould permit them to serve a sentence not in compliance with the statute" (id. at 471). We concluded that such a remedy was unavailable, stating:
"[t]he sole remedy for a procedural error such as this is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement" (id. at 471).
Thus, a criminal defendant has a right to hear directly from the court its pronouncement as to what the entire sentence encompasses. In Matter of Garner v New York State Dept. of Correctional Servs. (10 NY3d 358 ), we reaffirmed that "the combined command of CPL 380.20 and 380.40 is that the sentencing judgeand only the sentencing judgeis authorized to pronounce the PRS component of a defendant's sentence" (id. at 362).
In response to our decisions in Sparber and Garner, the Legislature created a statutory exception to the mandatory imposition of PRS, which was directly aimed at saving guilty pleas. On June 30, 2008, after the Appellate Division's ruling in this case, Penal Law § 70.85 became effective; it states that:
"[t]his section shall apply only to cases in which a determinate sentence was imposed between September first, nineteen hundred ninety-eight, and the effective date of this section, and was required by law to include a term of post-release supervision, but the court did not explicitly state such a term when pronouncing sentence. When such a case is again before the court pursuant to section six hundred one-d of the correction law or otherwise, for consideration of whether to resentence, the court may, notwithstanding any other provision of law but only on consent of the district attorney, re-impose the originally imposed determinate sentence of imprisonment without any term of post-release supervision, which then shall be deemed a lawful sentence."
Indeed, the Governor's Approval Memorandum acknowledges that the new statute would "avoid the need for pleas to be vacated when the District Attorney consents to re-sentencing without a term of PRS" (Governor's Approval Mem, Bill Jacket, L 2008, ch 141, at 13-14).
The People urge that even if Catu and its progeny require vacatur of defendant's plea and sentence, the Legislature has created an alternative remedy authorizing Supreme Court to resentence defendant to his original 12-year determinate sentence without PRS and that Penal Law § 70.85 should be applied here*fn2. This corrective action should not be entertained at this time because the constitutionality of this new provision and its applicability to this case have not been sufficiently developed for our review. Although a dissenting colleague believes that Penal Law § 70.85 is unconstitutional as applied to this case (see Pigott, J., dissenting op at 4), we recognize that the issue of whether the deficiency in the plea allocution can be rectified by granting defendant specific performance of the plea agreementa determinate sentence without imposing a term of PRSshould be determined by Supreme Court in the first instance. We therefore ...