                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 10, 2015                    106628
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

NATHAN D. BINION,
                    Appellant.
________________________________


Calendar Date:   November 23, 2015

Before:   Peters, P.J., McCarthy, Egan Jr., Devine and Clark, JJ.

                              __________


      Susan Patnode, Rural Law Center of New York, Albany (George
J. Hoffman of counsel), for appellant.

      Mary E. Rain, District Attorney, Canton (Ramy Louis of
counsel), for respondent.

                              __________


Peters, P.J.

      Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered February 14, 2014, convicting
defendant upon his plea of guilty of the crime of criminal
possession of a controlled substance in the fifth degree.

      In satisfaction of a one-count indictment, defendant
pleaded guilty to criminal possession of a controlled substance
in the fifth degree and waived his right to appeal. Pursuant to
the plea agreement, County Court agreed to place defendant on
interim probation for a period of one year and explained that, if
successful, he would be sentenced to felony probation. Defendant
was advised, however, that if he failed to abide by the terms of
his interim probation, he could be sentenced, as a second felony
                              -2-                106628

offender, to as much as four years in prison. County Court
thereafter placed defendant on interim probation and sentencing
was adjourned to January 2014.

      In January 2014, defendant was charged with violating the
terms of his probation by consuming alcohol and being arrested
for a new crime. Defendant then appeared before County Court for
sentencing and was sentenced as a second felony offender to four
years in prison to be followed by two years of postrelease
supervision. Defendant now appeals, arguing that his plea was
not knowing, voluntary and intelligent because he was not advised
of the mandatory postrelease supervision component of his
sentence.

      We reverse. Initially, defendant's challenge to the
voluntariness of his plea survives his otherwise valid waiver of
the right to appeal (see People v Bolivar, 118 AD3d 91, 93
[2014]; People v Brown, 107 AD3d 1303, 1304 [2013]). Moreover,
it was not necessary for defendant to preserve his challenge to
the imposition of postrelease supervision under these
circumstances (see People v Turner, 24 NY3d 254, 258 [2014];
People v Cornell, 16 NY3d 801, 802 [2011]; People v Louree, 8
NY3d 541, 545-546 [2007]). Turning to the merits, it is well
settled that, for a defendant's plea to be knowingly, voluntarily
and intelligently entered into, a court must advise him or her of
the direct consequences of a plea prior to sentencing, including
the existence and duration of any postrelease supervision
requirement (see People v Catu, 4 NY3d 242, 245 [2005]; People v
Brewington, 127 AD3d 1248, 1249 [2015]; People v Thomas, 68 AD3d
1445, 1446-1447 [2009]). Here, as the People concede, at the
time of his plea, defendant was not properly made aware of the
postrelease supervision component of his sentence. Accordingly,
defendant's decision to plead guilty was not a knowing, voluntary
and intelligent one and, therefore, the judgment of conviction
must be reversed (see People v Brown, 107 AD3d at 1304).

      In light of this result, we need not reach defendant's
alternative claim that the sentence imposed was harsh and
excessive.
                              -3-                  106628

     McCarthy, Egan Jr., Devine and Clark, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
