Lynn W. L. Fahey, New York, N.Y. (Janet Claire Le of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Daniel Bresnahan of counsel), for respondent.
REINALDO RIVERA, J.P., RUTH C. BALKIN, L. PRISCILLA HALL, SANDRA L. SGROI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Erlbaum, J.), rendered April 4, 2011, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is reversed, on the law, the plea is vacated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings on the indictment.
Based on the record before this Court, we reject the defendant's contention that the Supreme Court did not have jurisdiction over this criminal action (see generally CPL 100.05; 180.10, ; 190.50).
The defendant also argues that his plea was not knowingly, voluntarily, and intelligently entered because the Supreme Court failed to adequately advise him that he would not be permitted to withdraw his plea if he violated a condition of the plea agreement. Contrary to the defendant's contention, the record, taken as a whole, indicates that the defendant was informed that he would be subjected to an enhanced sentence, without the option of withdrawing his plea, in the event that he failed to comply with the conditions of the plea (see People v Akhtar, 13 A.D.3d 383, 383-384; People v Hughes, 260 A.D.2d 657, 658; People v Gibbs, 161 A.D.2d 661, 662). Based on the record, there is no basis upon which the defendant might have misconstrued the meaning of the Supreme Court's warning (see People v Fecu, 61 A.D.3d 991; People v Akhtar, 13 A.D.3d at 384; cf. Innes v Dalsheim, 864 F.2d 974; People v Elliot, 204 A.D.2d 565).
The defendant also challenges his plea on the basis that the court made no mention of postrelease supervision at the time he entered into the plea agreement. Contrary to the People's contention, under the circumstances of this case, the defendant's claim is not foreclosed based on the defendant's failure to make this argument in his 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).
Postrelease supervision is a direct consequence of a conviction (see People v Catu, 4 N.Y.3d 242). Thus, when a defendant pleads guilty and the terms of the plea agreement provide that the defendant's breach of the conditions of the plea will result in an enhanced sentence that may subject the defendant to a period of postrelease supervision, the court must advise the defendant that the sentence he or she will receive upon violating the conditions of the plea may include a period of postrelease supervision (see People v McAlpin, 17 N.Y.3d at 937-938). Since the Supreme Court failed to advise the defendant of the inclusion of postrelease supervision in an enhanced sentence, the defendant's plea was not knowingly, voluntarily, and intelligently entered, and vacatur of the plea is appropriate (see id. at 938).
In light of the foregoing determination, the defendant's remaining contentions have ...