        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

848
KA 12-02043
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTONIO R. DAVIS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered June 15, 2012. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree.

     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 Erie County Court for further proceedings on the
indictment.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), defendant contends that his plea was not
knowingly, voluntarily and intelligently entered because, inter alia,
County Court failed to advise him that he was subject to a period of
postrelease supervision as a condition of the plea. Initially,
although we reject defendant’s contention that his waiver of the right
to appeal is invalid (cf. People v Brown, 296 AD2d 860, 860, lv denied
98 NY2d 767), his challenge to the voluntariness of the plea survives
his waiver of the right to appeal (see People v Cullen, 62 AD3d 1155,
1156, lv denied 13 NY3d 795).

     As the People correctly concede, defendant’s contention requires
reversal. Where, as here, “ ‘a trial judge does not fulfill the
obligation to advise a defendant of postrelease supervision during the
plea allocution, the defendant may challenge the plea as not knowing,
voluntary and intelligent on direct appeal, notwithstanding the
absence of a postallocution motion’ ” raising that contention (People
v Boyd, 12 NY3d 390, 393, quoting People v Louree, 8 NY3d 541,
545-546). We therefore reverse the judgment, vacate the plea and
remit the matter to County Court for further proceedings on the
indictment.
                                 -2-                           848
                                                         KA 12-02043

     In light of our determination, we do not address defendant’s
remaining contentions.




Entered:   September 26, 2014                   Frances E. Cafarell
                                                Clerk of the Court
