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

529
KA 11-01156
PRESENT: SCUDDER, P.J., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

GENNA A. TURNER, DEFENDANT-APPELLANT.


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (JOSEPH D. WALDORF OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Vincent M.
Dinolfo, J.), rendered May 12, 2011. The judgment convicted defendant,
upon her plea of guilty, of attempted murder in the second degree,
burglary in the first degree and criminal contempt in the first degree.

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

     Memorandum: On appeal from a judgment convicting her upon a plea of
guilty of, inter alia, attempted murder in the second degree (Penal Law
§§ 110.00, 125.25 [1]), defendant contends that County Court erred in
refusing to suppress the statements that she made during an interview at
the police station and that she did not knowingly, voluntarily and
intelligently enter her plea because the court did not advise her that
she would be subject to a five-year period of postrelease supervision
(PRS) (see generally People v Catu, 4 NY3d 242, 245).

     We conclude that the court (Castro, A.J.) properly refused to
suppress the statements defendant made at the police station. Although
defendant made an inculpatory statement after she was placed in a patrol
vehicle and additional inculpatory statements after she was transported
to the police station, the court granted suppression of the statement
made in the patrol vehicle on the ground that her detention constituted
an arrest for which the police officer lacked probable cause. The court
refused, however, to suppress the subsequent statements at the police
station based on its determination that they were “attenuated from the
unlawful arrest.” We agree with the People that the record supports the
court’s determination (see generally People v Bradford, 15 NY3d 329, 333-
334). Although there was a period of only one hour between the time of
the illegal arrest and the time of defendant’s statements at the police
station (cf. People v Russell, 269 AD2d 771, 772), we note that defendant
was given Miranda warnings before the stationhouse interview (see
Bradford, 15 NY3d at 334; Russell, 269 AD2d at 772; People v Salami, 197
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                                                         KA 11-01156

AD2d 715, 715-716, lv denied 83 NY2d 876). Moreover, the victim’s
identification of defendant as the perpetrator constitutes a significant
intervening event (see Bradford, 15 NY3d at 334; Russell, 269 AD2d at
772) inasmuch as that identification provided the police with probable
cause for defendant’s arrest (see People v Divine, 21 AD3d 767, 767, affd
6 NY3d 790; Salami, 197 AD2d at 715). Lastly, there was no flagrant
misconduct or bad faith on the part of the police officer who took
defendant into custody (see Bradford, 15 NY3d at 334; Divine, 21 AD3d at
767).

     We reject defendant’s contention that the court erred in effectively
giving the People a “second bite at the apple” when it reopened the
suppression hearing (see generally People v Havelka, 45 NY2d 636, 643).
The prosecutor established that it was unclear whether defendant was
challenging her statements as involuntarily made (see CPL 60.45) or as
the fruit of an illegal arrest. In any event, we conclude that the court
properly exercised its discretion in reopening the hearing (see e.g.
People v Binion, 100 AD3d 1514, 1516; People v Ramirez, 44 AD3d 442, 443,
lv denied 9 NY3d 1008; People v Cestalano, 40 AD3d 238, 238, lv denied 9
NY3d 921).

     Following the court’s suppression ruling, defendant agreed to enter
a plea of guilty to the indictment with the understanding that the court
would impose a sentence of incarceration of 15 years. It is undisputed
that there was no mention of PRS during the course of the plea
allocution. “Because a defendant pleading guilty to a determinate
sentence must be aware of the [PRS] component of that sentence in order
to knowingly, voluntarily and intelligently choose among alternative
courses of action, the failure of a court to advise of [PRS] requires
reversal of the conviction” (Catu, 4 NY3d at 245; see People v Hill, 9
NY3d 189, 191, cert denied 553 US 1048). It is axiomatic that “a plea
cannot be knowing, voluntary and intelligent if a defendant is ignorant
of a direct consequence because of a deficiently conducted allocution”
(People v Louree, 8 NY3d 541, 545).

     The Court of Appeals has held that, generally, preservation of a
Catu error is not required. “If the trial judge does not mention [PRS]
at the allocution, . . . a defendant can hardly be expected to move to
withdraw his [or her] plea on a ground of which he [or she] has no
knowledge. [Moreover,] if the trial judge informs the defendant of [PRS]
during the course of sentencing, . . . a defendant may no longer move to
withdraw the plea since a motion may only be made under CPL 220.60 (3)
‘[a]t any time before the imposition of sentence’ (emphasis added)”
(Louree, 8 NY3d at 546). The Court of Appeals has also held in at least
one instance, however, that a defendant is required to preserve a Catu
error (see People v Murray, 15 NY3d 725).

     In Murray, the defendant was informed prior to his plea that he
faced a two-year period of PRS but, when he appeared for sentencing, the
court informed him “at the outset of the sentencing proceeding” of the
exact sentence that would be imposed, which included a three-year period
of PRS (id. at 726-727). The defendant did not object to the imposition
of the three-year period of PRS and, on appeal, the Court wrote that,
                                 -3-                           529
                                                         KA 11-01156

“[b]ecause [the] defendant could have sought relief from the sentencing
court in advance of the sentence’s imposition, Louree’s rationale for
dispensing with the preservation requirement is not presently applicable”
(id. at 727).

     Since Louree, courts have attempted to identify at what point a
defendant “could have sought relief . . . in advance of the sentence’s
imposition” (id.). For example, in both People v Young (85 AD3d 1489,
1490) and People v Lee (80 AD3d 1072, 1073, lv denied 16 NY3d 832), the
Third Department followed the holding of Murray and required preservation
where the defendants were informed, at the outset of the sentencing
proceeding, that a greater period of PRS would be imposed. In contrast,
the Court of Appeals has not required preservation where a defendant was
informed of the period of PRS “only moments before” the court imposed the
sentence (People v McAlpin, 17 NY3d 936, 938).

     In People v Burroughs (71 AD3d 1447, 1448, lv denied 15 NY3d 802),
the court failed to inform the defendant of the PRS component of the
sentence at the time of the plea. The defendant, however, received that
information “approximately one month before sentencing” and was granted
two adjournments to prepare a postallocution motion (id.). At no time
did the defendant move to withdraw his plea on the ground that the court
would impose PRS (see id.). Inasmuch as the defendant had notice of the
error and an opportunity to be heard on that issue, this Court rejected
the defendant’s contention that his plea of guilty should be vacated (see
id.). In People v Madison (71 AD3d 1422, 1422, lv denied 15 NY3d 753),
the court failed to advise the defendant at the time of the plea that a
period of PRS would be imposed. Several hours later, after the court had
recognized the omission, the defendant was brought back to court and
informed of the PRS component of the sentence (see id.). Upon
questioning by the court, the defendant “indicated that such information
did not affect his willingness to adhere to the plea agreement” (id. at
1422-1423). On appeal we rejected the defendant’s request to vacate the
plea on the ground that he “had the requisite notice that a period of
[PRS] would be imposed and an opportunity to withdraw his plea” (id. at
1423). In Burroughs and Madison, each defendant had sufficient
opportunity to preserve any issue with respect to PRS by bringing a
postallocution motion to withdraw the plea.

     Where the record is not clear that a defendant was informed of the
PRS component of the sentence before imposition of the sentence or the
record does not establish that the defendant had an opportunity to
withdraw the plea, we have followed the decision in Louree and vacated
the pleas even in the absence of preservation (see People v Cornell, 75
AD3d 1157, 1159, affd 16 NY3d 801; People v Colon, 101 AD3d 1635, 1638).
As we wrote in Cornell, “the court ha[s] a constitutional duty to ensure
that [a] defendant [is] aware that his [or her] sentence [will] include a
period of PRS” (Cornell, 75 AD3d at 1159).

     We conclude that this case is distinguishable from McAlpin, Cornell
and Colon. In this case the prosecutor informed the court,
“ ‘before the imposition of sentence’ ” (Louree, 8 NY3d at 546; see
generally CPL 220.60 [3]), that he could not recall whether PRS had been
                                 -4-                           529
                                                         KA 11-01156

discussed at the time of the plea. The prosecutor noted that they
“should probably make a record of that . . . so it is clear.” At that
point, the court informed defendant that it “intend[ed] to make a five
year period of [PRS].” Defendant was then asked if she had a chance to
talk about that with her attorney, and defendant answered, “[y]es.”
Defendant was also asked if she understood that the PRS was a “part of
[her] plea” and that she would be on parole supervision for five years at
the end of her prison sentence. Defendant answered, “[c]orrect.” When
asked if she “still wish[ed] to go through with sentencing today,”
defendant again answered, “[y]es.”

     In our view, the record is clear that “defendant could have sought
relief from the sentencing court in advance of the sentence’s
imposition,” and thus “Louree’s rationale for dispensing with the
preservation requirement is not presently applicable” (Murray, 15 NY3d at
727; see Madison, 71 AD3d at 1422-1423; Burroughs, 71 AD3d at 1448; see
also People v Brady, 59 AD3d 748, 748). In any event, we conclude that
defendant waived her right to assert the Catu error inasmuch as “there is
ample evidence in the record supporting the . . . conclusion that
defendant agreed to the bargain and did so voluntarily with a full
appreciation of the consequences” (People v Seaberg, 74 NY2d 1, 11; see
generally People v Cox, 71 AD2d 798, 798).

     All concur except SCONIERS and MARTOCHE, JJ., who dissent and vote to
reverse the judgment in accordance with the following Memorandum: We
respectfully dissent. “Because a defendant pleading guilty to a
determinate sentence must be aware of the postrelease supervision [PRS]
component of that sentence in order to knowingly, voluntarily and
intelligently choose among alternative courses of action, the failure of
a court to advise of postrelease supervision requires reversal of the
conviction” (People v Catu, 4 NY3d 242, 245). Contrary to the conclusion
of the majority, we agree with defendant that the plea was not knowingly,
voluntarily and intelligently entered and that she was not required to
preserve for our review her challenge to the voluntariness of the plea
(see People v Boyd, 12 NY3d 390, 393; People v Louree, 8 NY3d 541, 545-
546). It is undisputed that there was no mention of PRS at the plea
proceeding and, based on our review of the record, we conclude that
defendant was not “advised of what the sentence would be, including its
PRS term, at the outset of the sentencing proceeding” (People v Murray,
15 NY3d 725, 727). Rather, defendant did not learn that PRS would be
imposed until “moments before imposi[tion of] the sentence” (People v
McAlpin, 17 NY3d 936, 938).

     Significantly, the brief reference to PRS by the prosecutor at
sentencing “cannot substitute for [County Court’s] duty to ensure, at the
time the plea is entered, that the defendant is aware of the terms of the
plea . . . , especially in light of the fact that it was not stated that
[PRS] was required to be part of any sentence with a determinate prison
term” (People v Pett, 77 AD3d 1281, 1282 [internal quotation marks
omitted]), and we conclude that the brief reference does not support the
People’s position that “Louree’s rationale for dispensing with the
preservation requirement is not presently applicable” (Murray, 15 NY3d at
727; see People v Rivera, 91 AD3d 498, 498). Moreover, the majority’s
position, raised sua sponte, that defendant waived her right to assert
                                 -5-                          529
                                                        KA 11-01156

the Catu error is not supported by the record. The prosecutor told
defendant incorrectly just before the court imposed sentence that PRS was
“part of [her] plea,” and she was offered no option other than to proceed
to sentencing. Defendant indicated that she had discussed PRS with her
attorney and understood what the prosecutor had said. When the
prosecutor then asked if she “still wish[ed] to go through with
sentencing today,” defendant responded in the affirmative. Despite that
exchange, the record fails to demonstrate that defendant was ever
informed that there was an alternative to going forward with sentencing,
namely, that she was entitled to withdraw her guilty plea because of the
court’s failure to advise her of PRS at the plea proceeding. As a
result, defendant said nothing during the sentencing proceeding that
amounted to a waiver, i.e., “an intentional relinquishment or abandonment
of a known right or privilege” (Johnson v Zerbst, 304 US 458, 464). In
particular, defendant did not waive her “right to be sentenced in
accordance with the plea agreement” (People v McDermott, 68 AD3d 1453,
1453). We therefore vote to reverse the judgment, vacate the plea, and
remit the matter to County Court for further proceedings on the
indictment.




Entered:   June 14, 2013                       Frances E. Cafarell
                                               Clerk of the Court
