THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. APPEAL NO

Reset A A Font size: Print

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DAVID L. MAULL, ALSO KNOWN AS POOCHIE, DEFENDANT–APPELLANT. (APPEAL NO. 1.)

KA 10–00518

Decided: April 29, 2011

PRESENT:  SMITH, J.P., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ. JAMES L. DOWSEY, III, WEST VALLEY (KELIANN M. ELNISKI OF COUNSEL), FOR DEFENDANT–APPELLANT. LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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 Cattaraugus County Court for further proceedings on the indictment.

Memorandum:  Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39[1] ).   We agree with defendant that his plea was not knowingly, voluntarily and intelligently entered because County Court failed to advise him before he entered his plea that his sentence would include a period of postrelease supervision (see People v. Catu, 4 NY3d 242, 245;  People v. Antonetti, 74 AD3d 1912).   We therefore conclude that reversal is required, “notwithstanding the absence of a postallocution motion” (People v. Louree, 8 NY3d 541, 545–546).   In light of our determination, we need not address defendant's remaining contentions.

Patricia L. Morgan

Clerk of the Court