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

The PEOPLE of the State of New York, Respondent, v. George F. GOSS, Appellant.

Decided: November 29, 2001

Before:  CREW III, J.P., PETERS, SPAIN, MUGGLIN and LAHTINEN, JJ. Joseph Nalli, Cherry Valley, for appellant. James E. Conboy, District Attorney (Nicholas E. Tishler of counsel), Fonda, for respondent.

Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered August 21, 2000, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

Defendant was indicted and charged with burglary in the second degree, grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree and criminal possession of stolen property in the fifth degree.   In June 2000, while represented by counsel, defendant entered a plea of guilty to burglary in the second degree in full satisfaction of the indictment upon the understanding that he would be sentenced as a second felony offender-as opposed to a persistent felony offender-to a determinate term of incarceration of 12 years.   In connection with this plea, defendant executed a waiver of his right to appeal.   At no time during the plea colloquy was defendant advised that-by statute-his definite term of incarceration automatically would be followed by five years of postrelease supervision (see, Penal Law § 70.45 [1], [2] ).

Prior to sentencing, defendant moved to withdraw his guilty plea on the ground that he was never informed that postrelease supervision would be imposed as part of his sentence.   County Court denied defendant's motion finding that the plea was knowingly, voluntarily and intelligently entered.   The court then sentenced defendant-in accordance with the plea agreement-as a second felony offender to a determinate prison term of 12 years.   Defendant appeals.

 Initially, we reject the People's contention that defendant's waiver of the right to appeal precludes review of his argument that County Court erred in denying his motion to withdraw the plea.  “[A] defendant always retains the right to challenge the legality of the sentence or the voluntariness of the plea” (People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022).   Thus, defendant's written waiver of the right to appeal, executed in conjunction with his allegedly involuntary plea, does not preclude the instant appeal (see, id.;  People v. Thomas, 272 A.D.2d 985, 985-986, 708 N.Y.S.2d 681).

 Turning to the merits of defendant's appeal, we begin with the well-settled proposition that “[a] trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences” (People v. Ford, 86 N.Y.2d 397, 402-403, 633 N.Y.S.2d 270, 657 N.E.2d 265;  see, People v. Harris, 61 N.Y.2d 9, 19, 471 N.Y.S.2d 61, 459 N.E.2d 170).   Recognizing, however, that “a criminal court is in no position to advise on all the ramifications of a guilty plea personal to a defendant[,] * * * the courts have drawn a distinction between consequences of which the defendant must be advised, those which are ‘direct’, and those of which the defendant need not be advised, ‘collateral consequences' ” (People v. Ford, supra, at 403, 633 N.Y.S.2d 270, 657 N.E.2d 265;  see, People v. Latham, 90 N.Y.2d 795, 798, 666 N.Y.S.2d 557, 689 N.E.2d 527).   A direct consequence has a “definite, immediate and largely automatic effect on defendant's punishment” (People v. Ford, supra, at 403, 633 N.Y.S.2d 270, 657 N.E.2d 265;  see, People v. Latham, 234 A.D.2d 864, 865, 652 N.Y.S.2d 328 [holding that the use of a defendant's factual admissions during a plea allocution at a subsequent trial arising out of the same transaction to be a direct consequence of the plea], reversed on other grounds 90 N.Y.2d 795, 666 N.Y.S.2d 557, 689 N.E.2d 527;  see also, Ferguson v. United States, 513 F.2d 1011 [holding that a defendant must be informed of “special parole” period to follow agreed-upon sentence];  Bye v. United States, 435 F.2d 177, 180 [holding that a defendant must be apprised, prior to pleading guilty, of the unavailability of parole] ).

 Collateral consequences, by contrast, are “peculiar to the individual and generally result from the actions taken by agencies the court does not control” such as, for example, deportation (People v. Ford, supra, at 403, 633 N.Y.S.2d 270, 657 N.E.2d 265) and the discontinuance of work release and college programs for inmates (see, People v. Berezansky, 229 A.D.2d 768, 770, 646 N.Y.S.2d 574, lv. denied 89 N.Y.2d 919, 654 N.Y.S.2d 721, 677 N.E.2d 293;  see also, United States v. Crowley, 529 F.2d 1066, cert. denied 425 U.S. 995, 96 S.Ct. 2209, 48 L.Ed.2d 820 [loss of civil service employment];  Moore v. Hinton, 513 F.2d 781 [loss of a driver's license];  Meaton v. United States, 328 F.2d 379, cert. denied 380 U.S. 916, 85 S.Ct. 902, 13 L.Ed.2d 801 [loss of passport];  Redwine v. Zuckert, 317 F.2d 336 [undesirable discharge from the armed services] ).   We have also held that certification pursuant to New York's Sex Offender Registration Act (Correction Law art 6-C) is a collateral consequence of a guilty plea in that it is administrative and ministerial, rather than punitive (see, People v. Clark, 261 A.D.2d 97, 100, 704 N.Y.S.2d 149, lv. denied 95 N.Y.2d 833, 713 N.Y.S.2d 140, 735 N.E.2d 420).

 Even prior to a distinction being drawn between direct and collateral consequences in People v. Ford (supra ), it was understood that a defendant must be informed of each essential component of the sentence agreed upon for a guilty plea to be deemed to have been knowing and voluntary.   For example, in People v. Youngs (156 A.D.2d 885, 886, 550 N.Y.S.2d 106) we held that, prior to accepting a guilty plea, a court must inform a defendant that a statutorily mandated fine would accompany an agreed-upon sentence (see also, People v. Cote, 265 A.D.2d 681, 682, 697 N.Y.S.2d 184;  People v. Barto, 161 A.D.2d 1044, 1045, 558 N.Y.S.2d 856).   Similarly, a defendant must be given the opportunity to withdraw a guilty plea if the court fails to inform the defendant that payment of restitution is a required part of the sentence (see, People v. Austin, 275 A.D.2d 913, 715 N.Y.S.2d 173;  People v. Thomas, 210 A.D.2d 902, 621 N.Y.S.2d 978;  cf., People v. Prihett, 279 A.D.2d 335, 718 N.Y.S.2d 840 [suggesting a defendant need not be informed of a mandatory surcharge] ).   No appellate court in this State, however, has expressly decided whether the statutorily mandated postrelease supervision requirement embodied in Penal Law § 70.45 must be disclosed to a defendant prior to accepting a guilty plea (but see, People v. Saletnik, 285 A.D.2d 665, 728 N.Y.S.2d 248;  People v. Harler, 284 A.D.2d 734, 726 N.Y.S.2d 586;  People v. Bryant, 279 A.D.2d 890, 718 N.Y.S.2d 906).

Pursuant to Penal Law § 70.45, a period of postrelease supervision is automatically included in every determinate sentence “as part thereof” (Penal Law § 70.45[1] ).   The Board of Parole provides this supervision and is empowered to establish and impose conditions during the postrelease period in the same manner as it does for individuals on parole or conditional release (Penal Law § 70.45[3] ).   Significantly, “a violation of any condition of supervision occurring at any time during such period of post-release supervision shall subject the defendant to a further period of imprisonment of at least six months and up to the balance of the remaining period of post-release supervision” (Penal Law § 70.45[1] ).   For second violent felony offenders-such as defendant-the length of the period of postrelease supervision is five years (Penal Law § 70.45[2] ).   The stated purpose of mandatory postrelease supervision is “[t]o provide greater protection to the public” while “promot[ing] successful reintegration into the community” (Senate Mem. in Support, 1998 McKinney's Session Laws of N.Y., at 1489, 1493;  see also, Governor's Mem. approving L. 1998, ch. 1, 1998 McKinney's Session Laws of N.Y., at 1451-1452).

 In our view, the five-year period of postrelease supervision which-as a matter of statutory law-is included as part of defendant's 12-year determinate sentence clearly is a consequence “which has a definite, immediate and largely automatic effect on defendant's punishment” (People v. Ford, supra, at 403, 633 N.Y.S.2d 270, 657 N.E.2d 265;  see also, Senate Mem. in Support, 1998 McKinney's Session Laws of N.Y., at 1489 [describing postrelease supervision as “a distinct but integral part of the determinate sentence”] ).   Given the fact that a violation of the conditions of postrelease supervision results in a significant period of reincarceration and given that the legislative purpose underlying the postrelease supervision requirement is protecting the community, we conclude that postrelease supervision is a significant, punitive component of defendant's sentence.   Thus, we hold that postrelease supervision in this context is a direct consequence of defendant's plea (see, People v. Alcock, 188 Misc.2d 284, 287-289, 728 N.Y.S.2d 328).   Since defendant was not advised of it prior to entering the plea, he should have been permitted to withdraw his guilty plea (see, People v. Esposito, 32 N.Y.2d 921, 923, 347 N.Y.S.2d 70, 300 N.E.2d 438;  People v. Bryant, 180 A.D.2d 874, 875-876, 580 N.Y.S.2d 98).

 We also reject the People's contention that defendant had actual knowledge of the postrelease period prior to his plea, rendering harmless County Court's failure to advise him of that component of his sentence during the plea allocution.   Although defense counsel acknowledged receipt of a preplea letter from the court which detailed the components of the plea agreement including the postrelease supervision requirement, counsel admitted on the record that he was unable to state with assurance that the letter was forwarded by his office to defendant, and defendant denies receipt of the letter.   Furthermore, we decline the invitation to assume, from defendant's criminal history, that he was aware of the postrelease supervision requirement.   Mandatory postrelease supervision is a relatively recent phenomena (see, L. 1998, ch. 1, § 44 [applicable to offenses committed on or after September 1, 1998] ) and applies only to violent felonies (Penal Law § 70.45), and the People provide no support for imputing this legal knowledge to defendant based on his criminal history.   Under these circumstances, and applying the holding announced herein, we find inadequate record evidence to support a finding that defendant's plea was knowing and voluntary.

Finally, inasmuch as defendant never knowingly agreed to the five-year postrelease period of supervision to follow his 12-year determinate sentence, we reject the People's argument that the error in not disclosing this portion of the sentence to defendant is harmless.   In light of our conclusion that defendant's motion to withdraw his plea should have been granted, it is unnecessary to address defendant's remaining arguments.

ORDERED that the judgment is reversed, on the law, motion to withdraw plea granted and matter remitted to the County Court of Montgomery County for further proceedings not inconsistent with this Court's decision.



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