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People v. Divalentino

Supreme Court of New York, Second Department

September 25, 2013

The People of the State of New York, respondent,
v.
Anthony Divalentino, appellant Ind. No. 11-00093

Richard L. Herzfeld, New York, N.Y., for appellant, and appellant pro se.

Francis D. Phillips II, District Attorney, Middletown, N.Y. (Robert H. Middlemiss and Elizabeth L. Guinup of counsel), for respondent.

PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, RUTH C. BALKIN, THOMAS A. DICKERSON, SHERI S. ROMAN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered August 17, 2011, as amended September 12, 2011, convicting him of attempted murder in the second degree and conspiracy in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is reversed, on the law, the defendant's plea of guilty is vacated, and the matter is remitted to the County Court, Orange County, for further proceedings in accordance herewith.

In his pro se supplemental brief, the defendant contends that his plea of guilty was not knowingly, voluntarily, and intelligently entered because the County Court, inter alia, failed to advise him of the period of postrelease supervision that would be a component of his sentence. Contrary to the People's contention, under the circumstances of this case, this claim is not foreclosed based on the defendant's failure to make a post-allocution motion to withdraw his plea of guilty (see People v Louree, 8 N.Y.3d 541), or as a result of his failure to object when the court imposed a sentence which included a period of postrelease supervision (see People v McAlpin, 17 N.Y.3d 936, 938). We agree with the defendant's contention, and, accordingly, we reverse the judgment, vacate the defendant's plea of guilty, and remit the matter to the County Court, Orange County, for further proceedings.

The defendant appeared before the County Court on June 30, 2011, for plea proceedings. The court observed that the top count of the consolidated indictment charged the defendant with attempted murder in the second degree, which could result in a maximum determinate sentence of 25 years of imprisonment to be followed by 5 years of postrelease supervision. The court further observed that the count charging the defendant with conspiracy in the second degree could result in a maximum indeterminate term of imprisonment of 8⅓ to 25 years. The defendant stated that he understood. The court then discussed the People's plea offer, which included a sentence of 18 years of imprisonment plus 5 years of postrelease supervision on the count of attempted murder in the second degree, and an indeterminate term of imprisonment of 5 to 15 years on the count of conspiracy in the second degree, with the sentences to run consecutively. Thus, under the People's offer, the defendant would be sentenced to a minimum aggregate term of imprisonment of 23 years. The court then stated that, in contrast to the People's offer, it would not sentence the defendant to an aggregate term of imprisonment of 23 years, but, instead, "would prefer to have a parole hold on you a little longer, all right, but have a shorter period of time on the bottom that you would have to mand[a]torily serve." The court stated that it was willing to offer a sentence with "the bottom [being] 15 years in state[ ] prison combined, " and, "on the top, [the court] would reserve the right to give [him] as much as — I think I said [15], plus [5], you know, which would be [20] years."

The defendant stated that he wished to accept the plea offer extended by the County Court. The defendant was sworn in, and pleaded guilty to attempted murder in the second degree and conspiracy in the second degree. At sentencing on August 17, 2011, the court sentenced the defendant to a determinate term of imprisonment of 15 years to be followed by 5 years of postrelease supervision on the conviction of attempted murder in the second degree, and an indeterminate term of imprisonment of 3 to 12 years on the conviction of conspiracy in the second degree, with the sentences to run consecutively.

As the parties acknowledge, "[t]he Court of Appeals specifically found in [ People v Catu (4 N.Y.3d 242)] that postrelease supervision is a direct consequence of certain criminal convictions" (People v Monk, 83 A.D.3d 35, 37, affd 21 N.Y.3d 27). "As such, a defendant who pleads guilty to a crime resulting in a determinate sentence of imprisonment must be aware of the postrelease supervision component for the plea and sentence to be knowingly, voluntarily, and intelligently chosen from among the options available to the defense" (id.).

It is clear that, at the plea proceeding described above, the defendant was informed that his maximum sentencing exposure on the top count of attempted murder in the second degree, and the People's offer in connection with the top count, included a period of postrelease supervision. However, with regard to the plea agreement actually offered by the County Court and accepted by the defendant, the court failed to advise the defendant that the sentence would include a period of postrelease supervision. The defendant was not informed that a period of postrelease supervision would, in fact, be a part of the agreed-upon sentence, and he was not expressly informed that postrelease supervision was required by statute to be a part of any sentence with a determinate prison term (see People v Key, 64 A.D.3d 793, 793-794). Unlike the circumstances in People v Blunt (93 A.D.3d 675), here, after informing the defendant that his maximum sentencing exposure included a period of postrelease supervision, the court extended a specific sentence offer, specifying the range of the terms of imprisonment involved (cf. id. at 675), and this offer omitted any reference to postrelease supervision. The court has a duty to ensure, at the time a plea of guilty is entered, that the defendant is aware of the terms of the plea (see People v Key, 64 A.D.3d at 793-794). The County Court's failure to inform the defendant, at the time he entered his plea of guilty, that his sentence would, in fact, include a period of postrelease supervision, prevented his plea from being entered knowingly, voluntarily, and intelligently. Accordingly, the judgment must be reversed, the plea vacated, and the matter remitted to the County Court, Orange County, for further proceedings (see People v Catu, 4 N.Y.3d 242; see also People v Fuertes, 105 A.D.3d 974, 974; People v Campbell, 102 A.D.3d 979, 979; People v Weichow, 96 A.D.3d 883, 884).

The defendant's remaining contentions are academic in light of our determination.

SKELOS, J.P., BALKIN and DICKERSON, JJ., concur.

ANGIOLILLO, J., dissents, and votes to affirm the judgment with the following memorandum, in which ROMAN, J., concurs:

I do not agree with the majority that the County Court failed to advise the defendant of the postrelease supervision component of his sentence at the time he entered his plea of guilty. Therefore, I respectfully ...


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