PEOPLE v. TRISVAN (2008)

 On appeal from a judgment convicting him, upon his plea of guilty, of two counts of robbery in the first degree (Penal Law § 160.15 [4] ), defendant contends that his plea was not knowingly, voluntarily and intelligently entered because County Court failed to advise him of the mandatory period of postrelease supervision at the time of the plea.   Furthermore, because defendant was not advised of the period of postrelease supervision at the sentencing proceeding and the court did not impose a period of postrelease supervision at sentencing, he did not have notice of the mandatory period of postrelease supervision (see People v. Simpson, 30 A.D.3d 1112, 815 N.Y.S.2d 847;  People v. Brand, 30 A.D.3d 1113, 817 N.Y.S.2d 459;  see generally People v. Hill, 9 N.Y.3d 189, 191, 849 N.Y.S.2d 13, 879 N.E.2d 152, cert. denied --- U.S. ----, 128 S.Ct. 2430, 171 L.Ed.2d 257).   We agree with defendant that reversal and vacatur of the plea is required inasmuch as the court failed to advise him of the period of postrelease supervision at the time of the plea (see People v. Louree, 8 N.Y.3d 541, 544-546, 838 N.Y.S.2d 18, 869 N.E.2d 18;  Simpson, 30 A.D.3d at 1113, 815 N.Y.S.2d 847;  Brand, 30 A.D.3d 1113, 817 N.Y.S.2d 459;  see generally People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459).

 We further note that, in any event, defendant also is correct that the court erred in ordering him to pay restitution without first affording him the opportunity to withdraw his plea, inasmuch as restitution was not part of the plea agreement (see People v. Colligan, 52 A.D.3d 1209, 860 N.Y.S.2d 717 [2008], 2008 WL 2314510;  see generally People v. Ponder, 42 A.D.3d 880, 882, 838 N.Y.S.2d 767, lv. denied 9 N.Y.3d 925, 844 N.Y.S.2d 180, 875 N.E.2d 899;  People v. Cooke, 21 A.D.3d 1339, 804 N.Y.S.2d 516).   In light of our determination, we do not address defendant's challenge to the severity of the sentence.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, and the matter is remitted to Monroe County Court for further proceedings on the indictment.

MEMORANDUM: