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

458
KA 10-00518
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DAVID L. MAULL, ALSO KNOWN AS POOCHIE,
DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


JAMES L. DOWSEY, III, WEST VALLEY (KELIANN M. ELNISKI OF COUNSEL), FOR
DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered June 26, 2009. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal sale of a
controlled substance in the third 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 Cattaraugus County Court for further proceedings on the
indictment.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of attempted criminal sale of a controlled
substance in the third degree (Penal Law §§ 110.00, 220.39 [1]). We
agree with defendant that his plea was not knowingly, voluntarily and
intelligently entered because County Court failed to advise him before
he entered his plea that his sentence would include a period of
postrelease supervision (see People v Catu, 4 NY3d 242, 245; People v
Antonetti, 74 AD3d 1912). We therefore conclude that reversal is
required, “notwithstanding the absence of a postallocution motion”
(People v Louree, 8 NY3d 541, 545-546). In light of our
determination, we need not address defendant’s remaining contentions.




Entered:    April 29, 2011                         Patricia L. Morgan
                                                   Clerk of the Court
