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

The PEOPLE of the State of New York, Respondent, v. Matthew YANAS, Appellant.

Decided: January 25, 2007

Before:  CARDONA, P.J., MERCURE, SPAIN, MUGGLIN and LAHTINEN, JJ. Stephen M. Signore, Schenectady, for appellant. Robert M. Carney, District Attorney, Schenectady (Kurt A. Kafferlin, Law Intern), for respondent.

Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered November 19, 2004, convicting defendant upon his plea of guilty of the crime of attempted robbery in the first degree.

Following a robbery of a gas station in the City of Schenectady, Schenectady County, defendant was indicted on charges of first and second degree (two counts) robbery, later consolidated with another indictment apparently containing burglary and other charges.   Pursuant to a negotiated agreement, defendant pleaded guilty in County Court to attempted robbery in the first degree, in satisfaction of both indictments and three unindicted offenses.   Also, defendant made an oral waiver of appeal and executed a written waiver as part of the plea, with a promised sentence of at least 6 1/212 years but no more than 8 1/212 years.   Defendant was sentenced to an eight-year prison sentence, as a second felony offender, with a five-year period of postrelease supervision (hereinafter PRS).

 Defendant argues on appeal that County Court erred in not advising him during the plea proceedings, as required, that he would be subject to a mandatory five-year period of PRS (see People v. Catu, 4 N.Y.3d 242, 245, 792 N.Y.S.2d 887, 825 N.E.2d 1081 [2005];  People v. Goss, 286 A.D.2d 180, 182, 733 N.Y.S.2d 310 [2001] ).   Defendant's appeal waiver-which did not mention the PRS-does not foreclose review of his claim that the undisputed failure to advise him regarding PRS rendered his plea involuntary, unknowing and unintelligent (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989];  People v. Goss, supra at 181-182, 733 N.Y.S.2d 310;  cf. People v. Vance, 27 A.D.3d 1015, 1016, 811 N.Y.S.2d 499 [2006], lv. denied 7 N.Y.3d 764, 819 N.Y.S.2d 889, 853 N.E.2d 260 [2006] ).

Further, this Court has held that in order to preserve a claim under People v. Catu, supra for appellate review, a defendant must assert a timely objection during the sentence proceedings or move to withdraw the plea or vacate the judgment of conviction (see People v. Alexander, 21 A.D.3d 1223, 1224, 801 N.Y.S.2d 431 [2005], lv. denied 5 N.Y.3d 881, 808 N.Y.S.2d 584, 842 N.E.2d 482 [2005];  People v. Van Gorden, 307 A.D.2d 547, 548, 763 N.Y.S.2d 686 [2003], lv. denied 1 N.Y.3d 581, 775 N.Y.S.2d 797, 807 N.E.2d 910 [2003];  see also People v. Vance, supra at 1016, 811 N.Y.S.2d 499;  People v. Haynes, 14 A.D.3d 789, 790-791, 788 N.Y.S.2d 469 [2005], lv. denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679 [2005];  see also People v. Cumberbatch, 36 A.D.3d 157, 159, 824 N.Y.S.2d 272, 274 [2006];  People v. Louree, 28 A.D.3d 680, 813 N.Y.S.2d 219 [2006], lv. granted 7 N.Y.3d 758, 819 N.Y.S.2d 884, 853 N.E.2d 255 [2006];  People v. Chatmon, 17 A.D.3d 1103, 1104, 793 N.Y.S.2d 805 [2005], lv. denied 5 N.Y.3d 760, 801 N.Y.S.2d 254, 834 N.E.2d 1264 [2005];  but see People v. Bracey, 24 A.D.3d 363, 364, 807 N.Y.S.2d 34 [2005] ).   This Court may also take corrective action in the interest of justice (see CPL 470.15[3][c];  [6];  see e.g. People v. Evans, 30 A.D.3d 1130, 1131, 816 N.Y.S.2d 446 [2006] ).

Here, when the issue of PRS was first mentioned at sentencing, defendant immediately objected and stated that he was never told that he would be subject to five years of PRS. Defense counsel then confirmed that it “wasn't part of the plea agreement.”   The record does not reflect that defendant was aware of it prior to sentencing (cf. People v. Alexander, supra at 1224, 801 N.Y.S.2d 431;  People v. Vance, supra at 1016, 811 N.Y.S.2d 499);  at most, he may have been aware of a possible two-year period of PRS, although the record is unclear.   To compound matters, it was repeatedly stated on the record that the imposition of PRS had been left to County Court's discretion when, in fact, defendant was sentenced for this C violent felony (see Penal Law § 70.02[1] [a], [b] ) as a second felony offender (see Penal Law § 70.06[6][b] ), mandating five years of PRS (see Penal Law former § 70.45[2] [later amended by L 2004, ch. 738, Jan. 13, 2005];  see also People v. Catu, supra at 245, 792 N.Y.S.2d 887, 825 N.E.2d 1081).   At the end of the colloquy, defendant made a pro se request to withdraw his plea and asked trial counsel to file a CPL article 440 motion, although this was apparently never done.

 In our view, despite the lack of formality, defendant sufficiently registered a protest and made his position known to County Court so as to preserve this issue for our review (see CPL 470.05[2] ).  “Because a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of [the] court to advise [defendant] of postrelease supervision requires reversal of the conviction” (People v. Catu, supra at 245, 792 N.Y.S.2d 887, 825 N.E.2d 1081;  accord People v. Van Deusen, 7 N.Y.3d 744, 745, 819 N.Y.S.2d 854, 853 N.E.2d 223 [2006];  People v. Goss, supra at 184-185, 733 N.Y.S.2d 310).   In light of this conclusion, we find it unnecessary to address defendant's remaining contentions.

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



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