PEOPLE v. POWLESS (2007)

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 two counts of sodomy in the first degree (Penal Law former § 130.50 [1] ).   County Court properly vacated the judgment on the ground that defendant was not advised before entering his plea that he would be subject to a five-year period of postrelease supervision (see § 70.45;  People v. Catu, 4 N.Y.3d 242, 244-245, 792 N.Y.S.2d 887, 825 N.E.2d 1081).   Contrary to the People's contention, defendant's motion is not barred by CPL 440.10(2)(c) inasmuch as the court did not explicitly impose postrelease supervision at the time of sentencing, and defendant did not become aware of its imposition until after his direct appeal from the judgment of conviction was decided.   Thus, defendant did not “unjustifiabl[y]” fail to raise the issue on his direct appeal (id.;   cf. People v. Louree, 8 N.Y.3d 541, 545-546, 838 N.Y.S.2d 18, 869 N.E.2d 18).

Finally, we note that the People contended for the first time at oral argument of this appeal that we should apply the reasoning of the Second Circuit Court of Appeals in Earley v. Murray, 451 F.3d 71, reh. denied 462 F.3d 147 to this case.   We do not address that contention, in the interest of fairness to defendant.   That case was decided approximately six months before the People submitted their brief on appeal, which contained no reference to that case, nor did they submit a supplemental brief addressing the applicability of that case prior to oral argument of this appeal.

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

MEMORANDUM: