PEOPLE v. KEY

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

The PEOPLE, etc., respondent, v. Olsen KEY, appellant.

Decided: July 28, 2009

STEVEN W. FISHER, J.P., MARK C. DILLON, JOSEPH COVELLO, and THOMAS A. DICKERSON, JJ. Michael A. Fiechter, Bellmore, N.Y., for appellant, and appellant pro se. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Valentina M. Tejera of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Weinberg, J.), rendered May 28, 2003, convicting him of kidnapping in the second degree, assault in the first degree (two counts), and criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is reversed, on the law, the plea of guilty is vacated, and the matter is remitted to the County Court, Nassau County, for further proceedings.

The defendant contends that his plea of guilty was not knowing, voluntary, and intelligent inasmuch as the County Court did not advise him when he pleaded guilty that postrelease supervision would be a part of his sentence (see People v. Boyd, 12 N.Y.3d 390, 880 N.Y.S.2d 908, 908 N.E.2d 898;  People v. Louree, 8 N.Y.3d 541, 544-545, 838 N.Y.S.2d 18, 869 N.E.2d 18;  People v. Catu, 4 N.Y.3d 242, 245, 792 N.Y.S.2d 887, 825 N.E.2d 1081;  People v. Borrego, 59 A.D.3d 456, 871 N.Y.S.2d 912).   The People concede that reversal of the judgment of conviction is required, and we agree.   We note that defense counsel's statement regarding postrelease supervision during the plea negotiations several days before the defendant pleaded guilty cannot substitute for the court's duty to ensure, at the time the plea is entered, that the defendant is aware of the terms of the plea (see People v. Garcia, 61 A.D.3d 475, 876 N.Y.S.2d 402), especially in light of the fact that it was not stated that postrelease supervision was required to be part of any sentence with a determinate prison term.

In light of our determination, the defendant's remaining contentions, including those raised in his supplemental pro se brief, have been rendered academic.

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