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

98
KA 09-02480
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHARLES M. LEISTMAN, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John J.
Connell, J.), rendered September 25, 2009. The judgment convicted
defendant, upon his plea of guilty, of course of sexual conduct
against a child in the first 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 Monroe County Court for further proceedings on the
indictment.

     Memorandum: On appeal from a judgment convicting him, upon his
plea of guilty, of course of sexual conduct against a child in the
first degree (Penal Law § 130.75 [1] [a]), defendant contends that the
plea was involuntary because County Court failed to inform him that a
period of postrelease supervision (PRS) would be imposed. Although
defendant failed to move to withdraw the plea or to vacate the
judgment of conviction, it is well settled that, “ ‘where a trial
judge does not fulfill the obligation to advise a defendant of [PRS]
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’ ” (People v
Cornell, 16 NY3d 801, 802; see People v Boyd, 12 NY3d 390, 393). It
is also well settled that the court “has the constitutional duty to
advise a defendant of the direct consequences of a guilty plea,
including any period of [PRS] that will be imposed as part of the
sentence,” and “ ‘[t]he failure of a court to advise of [PRS] requires
reversal of the conviction’ ” (Cornell, 16 NY3d at 802, quoting People
v Catu, 4 NY3d 242, 245). Here, as the People correctly concede, the
record does not establish that the court advised defendant when he
pleaded guilty that the sentence would include a period of PRS. To
the contrary, the record establishes that the People indicated that
they would request a sentence of at least 10 years in prison, and the
                                 -2-                            98
                                                         KA 09-02480

court made no sentence promise other than to indicate that defendant
“will be sentenced to state prison.” Because the court “failed to
advise defendant prior to the entry of the plea that his sentence
would include a period of postrelease supervision, . . . his plea was
not knowingly, voluntarily and intelligently entered” (People v Rajab,
79 AD3d 1718, 1719; see People v Hill, 9 NY3d 189, 191-192, cert
denied 553 US 1048; Catu, 4 NY3d at 245). We therefore reverse the
judgment, vacate the plea, and remit the matter to County Court for
further proceedings on the indictment.

      Defendant’s remaining contentions are moot in light of our
determination.




Entered:   February 7, 2014                     Frances E. Cafarell
                                                Clerk of the Court
