PEOPLE v. PEREZ (2024)

Judgment, Supreme Court, New York County (James M. Burke, J.), rendered March 15, 2017, as amended June 6, 2017, convicting defendant, upon his guilty plea, of criminal sale of a controlled substance in the fifth degree and sentencing him to 11/212 years of incarceration with one year of postrelease supervision, unanimously affirmed.

Defendant's contention that his plea was involuntary because the court mistakenly stated that he would face a sentence with a two-year postrelease supervision component if he violated the conditions of his plea agreement, when in fact the maximum term of postrelease supervision for fifth-degree criminal sale of a controlled substance is one year (see Penal Law § 70.45[2][a]), is unpreserved because he failed to either move to withdraw his plea or to vacate the conviction pursuant to CPL 440.10 (see People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]).  Under the present circumstances, the narrow exception to the preservation requirement set forth in People v. Louree, 8 N.Y.3d 541, 545–546, 838 N.Y.S.2d 18, 869 N.E.2d 18 (2007), is inapplicable because defendant was placed on notice at the plea proceeding that the sentence he would receive upon violating the terms of the plea agreement would include a period of postrelease supervision and therefore had “actual or practical ability” (People v. Melendez, 201 A.D.3d 444, 445, 159 N.Y.S.3d 55 [1st Dept. 2022], lv denied 38 N.Y.3d 929, 164 N.Y.S.3d 36, 184 N.E.3d 857 [2022]), to move to withdraw his guilty plea before sentencing (see People v. Murray, 15 N.Y.3d 725, 727, 906 N.Y.S.2d 521, 932 N.E.2d 877 [2010];  People v. Brown, 137 A.D.3d 674, 674, 28 N.Y.S.3d 369 [1st Dept. 2016], lv denied 27 N.Y.3d 1149, 39 N.Y.S.3d 383, 62 N.E.3d 123 [2016]).

As an alternative holding, we find that the court's mistaken indication that defendant's sentence could include a two-year term of postrelease supervision could not have had any effect on his determination to accept the plea offer and thus had no bearing on the voluntariness of the guilty plea (see People v. Bruchanan, 37 A.D.3d 169, 169, 828 N.Y.S.2d 399 [1st Dept. 2007], lv denied 8 N.Y.3d 982, 838 N.Y.S.2d 485, 486, 869 N.E.2d 661, 662 [2007]).