PEOPLE v. DILLON (2009)

 On appeal from a judgment convicting him upon his plea of guilty of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15[1] ), defendant contends that his waiver of the right to appeal is invalid.   We reject that contention.   The inclusion of a waiver of the right to appeal as a condition of the plea bargain is neither improper nor against public policy (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Seaberg, 74 N.Y.2d 1, 8-10, 543 N.Y.S.2d 968, 541 N.E.2d 1022).   Contrary to defendant's contention, County Court “did not improperly conflate the waiver of the right to appeal with those rights automatically forfeited by a guilty plea” (People v. Bentley, 63 A.D.3d 1624, 1625, 879 N.Y.S.2d 790, lv. denied 13 N.Y.3d 742, 886 N.Y.S.2d 96, 914 N.E.2d 1014;  see People v. Williams, 49 A.D.3d 1281, 1282, 856 N.Y.S.2d 334, lv. denied 10 N.Y.3d 940, 862 N.Y.S.2d 347, 892 N.E.2d 413;  People v. Bilus, 44 A.D.3d 325, 843 N.Y.S.2d 32, lv. denied 9 N.Y.3d 1031, 852 N.Y.S.2d 16, 881 N.E.2d 1203;  cf. People v. Moyett, 7 N.Y.3d 892, 826 N.Y.S.2d 597, 860 N.E.2d 59).   Defendant's challenge to the severity of the sentence is encompassed by the valid waiver of the right to appeal (see Lopez, 6 N.Y.3d at 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

 We agree with defendant, however, that the judgment of conviction must be reversed and his plea vacated because the court failed to advise him prior to his entry of the plea that his sentence would include a period of postrelease supervision (see People v. Hill, 9 N.Y.3d 189, 191-192, 849 N.Y.S.2d 13, 879 N.E.2d 152, cert. denied --- U.S. ----, 128 S.Ct. 2430, 171 L.Ed.2d 257;  People v. Catu, 4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081;  People v. Walker [Appeal No. 1], 66 A.D.3d 1459, 885 N.Y.S.2d 693).   Where, as here, “ ‘a trial judge does not fulfill the obligation to advise a defendant of postrelease supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a postallocution motion’ ” (People v. Boyd, 12 N.Y.3d 390, 393, 880 N.Y.S.2d 908, 908 N.E.2d 898, quoting People v. Louree, 8 N.Y.3d 541, 545-546, 838 N.Y.S.2d 18, 869 N.E.2d 18), and that challenge survives defendant's waiver of the right to appeal (see People v. Cullen, 62 A.D.3d 1155, 1156, 880 N.Y.S.2d 211, lv. denied 13 N.Y.3d 795, 887 N.Y.S.2d 544, 916 N.E.2d 439;  People v. Woods, 46 A.D.3d 345, 847 N.Y.S.2d 552).

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 Niagara County Court for further proceedings on the indictment.

MEMORANDUM: