New York Supreme and/or Appellate Courts Appellate Division, First Department
January 3, 2012
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
ERNEST NELSON, DEFENDANT-APPELLANT.
People v Nelson
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.
Decided on January 3, 2012
Tom, J.P., Mazzarelli, Friedman, Renwick, DeGrasse, JJ.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered June 3, 2009, 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 drug offender, to a term of 3½ years, with 3 years' postrelease supervision, unanimously reversed, on the law, the plea vacated, the full indictment reinstated and the matter remanded for further proceedings. Appeal from order, same court and Justice, entered on or about January 6, 2010, which denied defendant's CPL article 440 motions to vacate the conviction and set aside the sentence, unanimously dismissed as academic.
At the time of the plea, the court advised defendant of the prison sentences he might receive if he violated the terms of his written plea agreement. The court, however, did not reference the imposition of postrelease supervision (PRS) as a component of the alternate sentence. Under People v Catu (4 NY3d 242, 244-245 ), PRS was a direct consequence of the plea notwithstanding that defendant could have earned a misdemeanor disposition had he complied with the agreement (see People v McAlpin, ___ NY3d ___, 2011 NY Slip Op 08456). Accordingly, he is entitled to vacatur of his plea as not knowing and voluntary. Moreover, defendant was not required to preserve the instant Catu claim because the court did not inform him of his exposure to PRS until sentence was imposed (see id.).
We find it unnecessary to reach any other issues.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 3, 2012
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