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

The PEOPLE of the State of New York, Respondent, v. Andre STEWART, Defendant-Appellant.

Decided: November 19, 2009

TOM, J.P., FRIEDMAN, MOSKOWITZ, FREEDMAN, ABDUS-SALAAM, JJ. Steven Banks, The Legal Aid Society, New York (Alan S. Axelrod of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Susan Axelrod of counsel), for respondent.

Order, Supreme Court, New York County (Bruce Allen J.), entered on or about April 3, 2009, which denied defendant's CPL article 440 motion, unanimously affirmed.

When defendant pleaded guilty in 2003, the court did not inform him of the specific term of postrelease supervision he would be receiving, although it did inform him it would impose the maximum permissible term.   At sentencing the court imposed 5 years post-release supervision.   The omission of the warning required under People v. Catu, 4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081 [2005] “is clear from the face of the record and therefore not properly raised in a CPL article 440 motion” (People v. Louree, 8 N.Y.3d 541, 546, 838 N.Y.S.2d 18, 869 N.E.2d 18 [2007] ).   There is no merit to defendant's argument that this aspect of the Louree decision is dictum.

Defendant also argues that this rule should not apply to him because his failure to take a direct appeal was not “unjustifiable” within the meaning of CPL 440.10(2)(c), in that his time to take an appeal expired before Catu was decided, so that an appeal would allegedly have been futile.   Under that reasoning, since a CPL article 440 motion has no time limit, a defendant whose conviction was already final could use such a motion to take advantage of any relevant new development in the law, regardless of whether the new rule applied retroactively on collateral review (cf. Policano v. Herbert, 7 N.Y.3d 588, 603-604, 825 N.Y.S.2d 678, 859 N.E.2d 484 [2006] ).   Moreover, it would not have been “futile” to raise the issue of lack of advice concerning postrelease supervision on appeal;  defendant had the same opportunity as the defendant in Catu to do so.