PEOPLE v. HOGUE (2009)

Order, Supreme Court, New York County (Charles H. Solomon J.), entered on or about February 27, 2007, which denied defendant's CPL 440.10 motion to vacate a judgment, same court and Justice, rendered on or about January 25, 2000, and denied his CPL 440.20 motion to set aside his sentence, unanimously modified, on the law, to the extent of vacating defendant's sentence and remanding for resentencing, and otherwise affirmed.

 Although defendant's conviction required the imposition of a term of post-release supervision (PRS), the court did not mention PRS during the plea allocution (see People v. Catu, 4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081 [2005] ), and failed to impose any term of PRS at sentencing, either orally or otherwise (see People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459 [2008] ).   However, defendant did not raise any issue relating to PRS on his direct appeal to this Court.   Defendant was not entitled to raise, by way of a CPL 440.10 motion, a claim that the lack of a warning that his sentence would include PRS rendered the plea involuntary under Catu, because “the omission at issue is clear from the face of the record” (People v. Louree, 8 N.Y.3d 541, 546, 838 N.Y.S.2d 18, 869 N.E.2d 18 [2007];  see also People v. Cooks, 67 N.Y.2d 100, 500 N.Y.S.2d 503, 491 N.E.2d 676 [1986];  CPL 440.10[2][c] ).  People v. Hill, 9 N.Y.3d 189, 849 N.Y.S.2d 13, 879 N.E.2d 152 [2007], cert. denied 553 U.S. ----, 128 S.Ct. 2430, 171 L.Ed.2d 257 [2008] is not to the contrary, as the issue there was raised on direct appeal.   There was no impediment to defendant raising this issue on his direct appeal, and to the extent he contends the attorney who represented him on that appeal rendered ineffective assistance, that claim would require a coram nobis motion addressed to this Court (see People v. Cuadrado, 37 A.D.3d 218, 223, 830 N.Y.S.2d 65 [2007], affd. 9 N.Y.3d 362, 850 N.Y.S.2d 375, 880 N.E.2d 861 [2007] ).

Nevertheless, defendant's sentence is presently unlawful because it does not include a period of PRS.

The Decision and Order of this Court entered herein on December 23, 2008 is hereby recalled and vacated (see M-225 decided simultaneously herewith).