PEOPLE v. COLEMAN (2009)

Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Appellant, v. Richard L. COLEMAN, Defendant-Respondent.

Decided: April 24, 2009

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ.

Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Appellant. David P. Elkovitch, Auburn, for Defendant-Respondent.

The People appeal from an order granting defendant's CPL 440.10 motion and vacating the judgment convicting defendant upon his plea of guilty of, inter alia, burglary in the first degree (Penal Law § 140.30 [3] ). We conclude that County Court properly vacated the judgment on the ground that defendant was not advised prior to entering his plea that he would be subject to a period of postrelease supervision (see People v. Catu, 4 N.Y.3d 242, 244-245, 792 N.Y.S.2d 887, 825 N.E.2d 1081; People v. Powless, 46 A.D.3d 1350, 849 N.Y.S.2d 150). Inasmuch as the court did not impose a period of postrelease supervision at the time of sentencing and defendant was unaware of its imposition until after his direct appeal was decided, we reject the People's contention that the motion is barred by CPL 440.10(2)(c) (see Powless, 46 A.D.3d 1350, 849 N.Y.S.2d 150).

It is hereby ORDERED that the order so appealed from is unanimously affirmed.

MEMORANDUM:

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