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

The PEOPLE of the State of New York, Respondent, v. Albert F. CHIACCHIARINI, Appellant.

Decided: January 19, 2012

Before:  PETERS, J.P., ROSE, McCARTHY, GARRY and EGAN JR., JJ. Brent R. Stack, Valatie, for appellant. Joseph G. Fazzary, District Attorney, Watkins Glen (Matthew C. Hayden of counsel), for respondent.

Appeals (1) from a judgment of the County Court of Schuyler County (Argentsinger, J.), rendered June 25, 2009, which resentenced defendant following his conviction upon his plea of guilty of the crime of sodomy in the first degree (two counts), and (2) by permission, from an order and amended order of said court, entered March 17, 2011 and August 10, 2011, which, among other things, denied defendant's motions pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In May 2000, defendant pleaded guilty to two counts of sodomy in the first degree and was sentenced to two consecutive 10–year prison terms.   No mention of the mandatory period of postrelease supervision required pursuant to Penal Law § 70.45 was made either during the plea colloquy or at sentencing, nor did County Court actually impose a period of postrelease supervision at the time of sentencing.   Nearly seven years later, defendant filed the first of two pro se motions pursuant to CPL 440.10 seeking to vacate his conviction upon the ground that his plea was involuntary due to an alleged Catu violation (see People v. Catu, 4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081 [2005] ) and, further, that he had been denied the effective assistance of counsel.   In June 2009, and with the People's consent, County Court resentenced defendant pursuant to Penal Law § 70.85 to two consecutive 10–year prison terms with no period of postrelease supervision.   County Court also denied defendant's CPL article 440 motions,1 as well as his subsequent motion for reconsideration.   These appeals ensued.

 Defendant's principal argument on appeal is that County Court's failure to apprise him—at the time of his plea—that he was subject to a mandatory period of postrelease supervision renders the underlying plea involuntary and mandates the vacatur thereof under Catu—even though no period of postrelease supervision ever was imposed by either the sentencing court or the Department of Corrections and Community Supervision.   As County Court correctly observed, where, as here, the alleged Catu violation appears on the face of the record and, therefore, could have been raised on a direct appeal, such claim cannot be advanced in the context of a CPL article 440 motion (see People v. Stewart, 16 N.Y.3d 839, 840–841, 923 N.Y.S.2d 404, 947 N.E.2d 1182 [2011];  People v. Louree, 8 N.Y.3d 541, 546 n., 838 N.Y.S.2d 18, 869 N.E.2d 18 [2007];  People v. Hogue, 62 A.D.3d 410, 410–411, 878 N.Y.S.2d 318 [2009];  People v. Rivera, 51 A.D.3d 1267, 1269, 858 N.Y.S.2d 825 [2008];  People v. Figueroa, 45 A.D.3d 297, 298, 846 N.Y.S.2d 87 [2007] ).   Accordingly, defendant's CPL 440.10 motions were properly denied without a hearing on this basis.

Our inquiry does not end there, however, because defendant also challenges County Court's resentencing of him, contending that the resentencing procedure set forth in Penal Law § 70.85—although designed “in part, to avoid the need to vacate guilty pleas under Catu when defendants are not properly advised of mandatory terms of postrelease supervision” (People v. Rucker, 67 A.D.3d 1126, 1127, 888 N.Y.S.2d 313 [2009] )—cannot be invoked to remedy a constitutional defect in the plea itself.   Thus, defendant asserts, the sole remedy for a Catu violation is vacatur of the underlying plea.   We disagree.

 Had the District Attorney refused to consent to the reimposition of the original sentence absent any term of postrelease supervision, County Court plainly would have been compelled to vacate the judgment of conviction, thereby restoring defendant to his pre-plea status (cf. People v. Verhow, 83 A.D.3d 1528, 1529, 923 N.Y.S.2d 807 [2011] ).   Here, however, the District Attorney did provide the requisite consent, thus paving the way for County Court to resentence defendant in conformity with Penal Law § 70.85. Under these circumstances, where defendant did not receive the period of postrelease supervision that should have been—but never was—imposed, we discern no constitutional infirmity and, hence, “defendant [is] not entitled to vacatur of his plea” (People v. Williams, 82 A.D.3d 1576, 1578, 919 N.Y.S.2d 608 [2011], lv. denied 17 N.Y.3d 810, 929 N.Y.S.2d 570, 953 N.E.2d 808 [2011];  cf. People v. Verhow, 83 A.D.3d at 1528–1529, 923 N.Y.S.2d 807).

Finally, based upon our review of the record as a whole, we find no merit to defendant's claim of ineffective assistance of counsel (see generally People v. Wright, 85 A.D.3d 1316, 1317, 924 N.Y.S.2d 670 [2011] ).   Defendant's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.

ORDERED that the judgment, order and amended order are affirmed.


1.   County Court's amended August 10, 2011 order reflects that these motions were denied on the merits as to defendant's ineffective assistance of counsel claim and, as to the Catu issue, were barred due to defendant's failure to raise that claim on a direct appeal.


PETERS, J.P., ROSE, McCARTHY and GARRY, JJ., concur.

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