Charles J. Greenberg, for appellant.
Michael J. Hillery, for respondent.
Jodi A. Danzig, for intervenor Attorney General.
Defendant Anthony Pignataro challenges his resentencing under Penal Law § 70.85, claiming the statute is unconstitutional because it deprives him of his right to vacate his guilty plea. Finding no constitutional deprivation visited on the defendant by his resentencing under Section 70.85, we affirm.
In November 2000, defendant Anthony Pignataro pleaded guilty to attempted assault in the first degree (Penal Law §§ 110.00, 120.10), a class C violent felony offense, in full satisfaction of a multi-count indictment alleging he poisoned his wife. During his plea colloquy, the trial court told defendant that he would receive a 5 to 15 year determinate sentence of incarceration. However, the court did not inform him that Penal Law § 70.45 required a period of postrelease supervision ("PRS") to follow all determinate sentences. In February 2001, the court orally sentenced defendant to the maximum 15-year sentence, without pronouncing the mandatory term of PRS. Defendant did not perfect his direct appeal but brought various postconviction proceedings in state and federal courts, challenging his plea as involuntary (see, e.g., People v Pignataro, 20 A.D.3d 892 [4th Dept 2005]; Pignataro v Poole, 381 Fed.Appx 46 [2d Cir 2010]). In the present appeal, defendant challenges a resentencing proceeding brought under Penal Law § 70.85 on the same grounds.
Defendant's argument on appeal has its legal genesis in a series of cases decided by this Court, beginning with People v Catu (4 N.Y.3d 242 ). In Catu, we held that a trial court has the constitutional duty to inform a defendant of a mandatory term of PRS before accepting a guilty plea (id. at 245). We concluded that when the court does not so inform the defendant, the plea cannot represent "a voluntary and intelligent choice among the alternative courses of action open to the defendant, " and the defendant has a right to vacate the involuntary plea (id.). The error identified in Catu was the same error that infected defendant's guilty plea.
Following Catu, we have repeatedly reaffirmed that a defendant could vacate a plea when the trial court failed to mention a mandatory term of PRS during the plea allocution. In People v Van Deusen (7 N.Y.3d 744, 746 ), we held that a defendant may vacate a plea even when the term imposed at sentencing, including both imprisonment and PRS, amounted to less time than the maximum term contemplated at the plea colloquy. In People v Hill (9 N.Y.3d 189, 192 ), we rejected an attempt to impose PRS through a resentencing proceeding that reduced the period of incarceration so that the total sentence term equaled the period discussed at the plea allocution. In Hill, we clarified that a Catu error "violated the defendant's due process rights—not the defendant's sentencing expectations" (id. at 193). Accordingly, even a resentencing proceeding that gave the defendant the benefit of a plea bargain could not remedy the underlying constitutional violation (id.).
In 2008, the Legislature enacted Penal Law § 70.85 to provide trial courts with another means to address Catu errors and "avoid the need for pleas to be vacated" (Governor's Approval Mem, Bill Jacket, L 2008, ch 141, at 13-14). The statute authorizes a trial court to "re- impose, " with the People's consent, "the originally imposed determinate sentence of imprisonment without any term of [PRS]" (Penal Law § 70.85). Section 70.85 thus makes an exception to Penal Law § 70.45 by allowing a determinate sentence without a term of PRS to stand as a legal sentence.
In May 2010, the People moved Supreme Court to resentence defendant under Penal Law § 70.85. In response, defendant challenged the proceeding as unconstitutional because it did not permit him to withdraw his involuntary plea, claiming he had an undeniable right to such relief under Catu and its progeny. He asked the court to vacate his plea or, alternatively, to adjourn the proceeding pending the resolution of his federal habeas corpus petition, which was then on appeal from the Western District of New York to the United States Court of Appeals for the Second Circuit. Supreme Court rejected defendant's arguments, and resentenced him under section 70.85 to a determinate term of 15 years without PRS. 
In June 2010, after Supreme Court resentenced defendant, the Second Circuit affirmed the District Court's order dismissing his federal habeas petition (Pignataro v Poole, 381 Fed.Appx 46 [2d Cir 2010]). Following its earlier precedent, the Second Circuit held that the unimposed, mandatory period of PRS was not a direct consequence of defendant's conviction (id. at 49-50; see Earley v Murray, 451 F.3d 71, 75-76 [2d Cir 2006]; Earley v Murray, 462 F.3d 147, 149 [2d Cir 2006]). As a result, the Court concluded, defendant's plea had been knowing and voluntary, even though the trial court had not informed him of the mandatory PRS term (Pignataro, 381 Fed.Appx at 49-50).
Meanwhile, defendant appealed Supreme Court's resentencing order to the Appellate Division, which affirmed in a memorandum opinion (People v Pignataro, 93 A.D.3d 1250 [4th Dept 2012]). Defendant appeals from the Appellate Division order, claiming that Penal Law § 70.85 is unconstitutional because it denies him the right to vacate his guilty plea. His appeal squarely presents this Court with the question of the constitutionality of section 70.85, which we left ...