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The People of the State of v. David Garcia

State of New York Supreme Court, Appellate Division Third Judicial Department


November 23, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DAVID GARCIA, ALSO KNOWN AS D, APPELLANT.

Appeals (1) from a judgment of the County Court of Saratoga County (Scarano, J.), rendered December 1, 2009, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree, and (2) from a judgment of said court, rendered January 7, 2011, which resentenced defendant.

The opinion of the court was delivered by: Stein, J.

MEMORANDUM AND ORDER

Calendar Date: October 17, 2011

Before: Mercure, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ.

Defendant pleaded guilty to criminal sale of a controlled substance in the third degree in full satisfaction of a three-count indictment, as well as a pending robbery charge and any other drug charges within Saratoga County. In exchange for defendant's guilty plea, he was promised a prison sentence of 71/2 years plus a period of postrelease supervision between 21/2 and 5 years. Following defendant's plea, County Court imposed sentence in accordance with the terms of the plea agreement, setting the period of postrelease supervision at five years. Thereafter, counsel for defendant advised the court that the period of postrelease supervision authorized by law was actually between 11/2 and 3 years and defendant moved to withdraw his plea. County Court denied defendant's motion to withdraw the plea and resentenced him to a period of postrelease supervision of three years. Defendant now appeals.

We affirm. Defendant argues that he was denied due process because he was not properly advised of the duration of the applicable period of postrelease supervision at the time he entered his guilty plea. We disagree. It is clear that "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" (People v Catu, 4 NY3d 242, 245 [2005]; accord People v Hill, 9 NY3d 189, 191 [2007], cert denied 553 US 1048 [2008]; People v Rivera, 51 AD3d 1267, 1268 [2008]). Here, as required by People v Catu (supra), defendant was advised that he would be subjected to a period of postrelease supervision between 21/2 and 5 years. In fact, the legally authorized period of postrelease supervision was between 11/2 and 3 years. Inasmuch as the duration of the postrelease supervision authorized by law and ultimately imposed fell within the range of which defendant was advised and to which he agreed at the time he entered his plea, we find that defendant's plea was a knowing, voluntary and intelligent choice among the alternatives, and County Court properly denied his motion to withdraw the plea (see People v Sheils, 288 AD2d 504, 505 [2001], lv denied 97 NY2d 733 [2002]; compare People v Miller, 62 AD3d 1047, 1048 [2009]).

Mercure, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur.

ORDERED that the judgments are affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20111123

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