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

650
KA 12-01760
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KAITLYN E. SHAW, DEFENDANT-APPELLANT.


WILLIAMS, HEINL, MOODY & BUSCHMAN, P.C., AUBURN (MARIO J. GUTIERREZ OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (BRIAN N. BAUERSFELD OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered June 26, 2012. The judgment revoked a
sentence of probation and imposed a sentence of imprisonment.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment that, upon her
admission to violating a condition of probation, revoked the sentence
of probation imposed upon her conviction of assault in the second
degree (Penal Law § 120.05 [3]) and sentenced her to a term of
imprisonment. Defendant contends that her admission was not knowing,
voluntary or intelligent because County Court failed to inform her at
any time that she would be subject to postrelease supervision if the
court sentenced her to prison. Defendant failed to preserve that
contention for our review inasmuch as she failed to move to withdraw
her admission on that ground (see People v Barra, 45 AD3d 1393, 1393-
1394, lv denied 10 NY3d 761), and we decline to exercise our power to
review that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [3] [c]).

     People v Bolivar (___ AD3d ___ [May 1, 2014]) is distinguishable
with respect to the threshold issue of preservation. In that case, in
exchange for the defendant’s admission to violating probation, the
parties agreed that sentencing would be adjourned to allow the
defendant to complete an inpatient treatment program, and the parties
further agreed that, if the defendant failed to complete the program,
she would be sentenced to a term of imprisonment (id. at ___). The
defendant failed to complete the treatment program and was sentenced
to a period of postrelease supervision in addition to a term of
imprisonment (id. at ___). The court first mentioned the mandatory
term of postrelease supervision, however, only moments before imposing
                                 -2-                           650
                                                         KA 12-01760

sentence (id.). The Third Department therefore held that the
defendant was not required to preserve for appellate review her
challenge to the voluntariness of her plea of guilty to the probation
violation (id. at ___). Here, by contrast, before defendant pleaded
guilty to the underlying offense, the court informed her of the
mandatory period of postrelease supervision that would follow any term
of imprisonment. Thus, defendant “was made aware—prior to entering
her [admission] to the probation violation—that postrelease
supervision would be a component of her sentence” (id. at ___), and
preservation of defendant’s contention is therefore required.

     Finally, we reject defendant’s contention that the sentence is
unduly harsh and severe.




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
