Judgment, Supreme Court, New York County (Renee A. White, J.), rendered August 28, 2007, convicting defendant, upon his plea of guilty, of robbery in the second degree, and sentencing him to a term of 31/2 years followed by five years' postrelease supervision, reversed, on the law, the plea vacated, the full indictment reinstated and the matter remanded for further proceedings.
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This opinion is uncorrected and subject to revision before publication in the Official Reports.
Saxe, J.P., Buckley, McGuire, DeGrasse, Freedman, JJ.
On the day of defendant's plea to robbery in the second degree, based on an allocution that he and his friends had repeatedly punched the complainant and stolen his portable Playstation, the terms of the plea as stated on the record were that defendant would receive a "deferred sentence" with a possibility of probation and youthful offender treatment, if defendant enrolled in and successfully completed a Fortune Society program. However, if he failed to do so, or if he got arrested for another crime in the interim, he was told, he would be sentenced to a minimum of 3 years and a maximum of 15 years.
Seven months later defendant was in court for sentencing, having been rearrested twice and having failed to successfully complete the Fortune Society program. The sentencing court remarked that the People had previously requested a term of 31/2 years if imprisonment was required, and the People continued to recommend that term. When defense counsel protested about the "raise" in the term being imposed, the court said, "It's not a raise. Just to remind you, the plea agreement he pled guilty to on January 2, 2007, he pled to robbery in the second degree which is a Class C Violent Felony offense. I advised him that I would place him on this Interim Probation Sentence; and if he was successful, he would get YO and probation. However, the minimum sentence being 3-1/2 years, I told him that if he was not successful he will have to go to prison for 3-1/2 years and, of course, 5 years of Post-Release Supervision." Defense counsel said, "Yes; I remember that, Judge."
Notwithstanding the court's assertion at sentencing that defendant was informed at the time of the plea that his sentence would include the postrelease supervision component, and defense counsel's agreement, in the absence of any mention in the plea minutes of postrelease supervision, we are unable to conclude that defendant was timely informed of it.
When a defendant pleads guilty with the understanding of the term of imprisonment to be imposed, but is not informed until sentencing of the postrelease supervision component of his sentence, the plea must be vacated as not knowing and voluntary (People v Louree, 8 NY3d 541, 545 ). Belated knowledge of postrelease supervision learned of at the time of sentencing does not constitute grounds to require a motion to vacate the plea in order to preserve the issue for appeal (id. at 545-546).
We reject the dissent's assertion that defendant did not have to be informed of the postrelease supervision component of the potential sentence, on the reasoning that postrelease supervision was not in this instance a "direct consequence" of the plea as contemplated by People v Catu (4 NY2d 242 , since it would only become necessary in the event that defendant failed to satisfy the conditions of his "deferred sentence." At the time of the plea, in order to ensure that defendant was knowingly and voluntarily waiving his right to trial, the court appropriately informed defendant that the proposed terms of the plea included a potential determinate term of anywhere from 3 years to 15 years if he failed to satisfy the conditions of his interim probation. By the same token, the court should have simultaneously made defendant aware of the postrelease supervision component of that potential sentence. In our view, the potential term of imprisonment, including postrelease supervision, may have been contingent on defendant's behavior, but it nevertheless does not fall into the category of "collateral consequences" about which the defendant need not be informed in order to ensure a valid waiver.
All concur except Buckley and McGuire, JJ. who dissent in a memorandum by McGuire, J. as follows:
The majority implicitly concludes that defendant's claim under People v Catu (4 NY3d 242 ) is preserved for review and has not been waived. As defendant is entitled to no relief in any event, I need not decide whether I agree with that conclusion.
Although the plea minutes make clear that defendant was not advised on the record of a postrelease supervision component to the sentence in the event he did not successfully complete the interim probation sentence, the critical question is whether defendant was so advised prior to the plea colloquy during proceedings that were not transcribed. The record provides a substantial, albeit not a conclusive, basis for concluding that defendant was so advised. At sentencing, the court stated that at the time of his plea defendant was advised that if he was not successful on the interim probation sentence, he would "have to go to prison for 3-1/2 years and, of course, 5 years of Post-Release Supervision." Defendant's attorney agreed with the court, expressly stating, "Yes, I remember that, Judge." If Justice White and defense counsel were correct, vacating defendant's guilty plea confers a windfall on defendant and needlessly deprives the People of a fairly obtained conviction for a serious crime. The majority writes that "in the absence of any mention in the plea minutes of postrelease supervision, we are unable to conclude that defendant was timely informed of it." I respectfully submit that the majority also should be unable to conclude that the court and defense counsel were wrong, i.e., that defendant was not timely informed of postrelease supervision.
Accordingly, I would hold that defendant has failed to meet his burden of presenting this Court with a factual record sufficient to permit review of his claim that he was not timely informed about postrelease supervision (see People v Kinchen, 60 NY2d 772, 773-774 ). For the majority to simply accept defendant's appellate claim that his counsel and the court were wrong is particularly inappropriate given the absence of any ...