                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: April 2, 2015                      105901
________________________________

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

RUBIN BREWINGTON,
                    Appellant.
________________________________


Calendar Date:   February 20, 2015

Before:   Lahtinen, J.P., Garry, Rose and Devine, JJ.

                              __________


     William T. Morrison, Albany, for appellant.

      P. David Soares, District Attorney, Albany (Brittany L.
Grome of counsel), for respondent.

                              __________


Garry, J.

      Appeal from a judgment of the County Court of Albany County
(Herrick, J.), rendered January 7, 2013, convicting defendant
upon his plea of guilty of the crime of burglary in the second
degree (two counts).

      In satisfaction of two multicount indictments, defendant
agreed to plead guilty to two counts of burglary in the second
degree. Defendant also executed an appeal waiver, but reserved
his right to appeal on the sole issue of whether he could
properly be sentenced as a persistent violent felony offender.
At sentencing, defendant argued that a prior conviction from 1999
was obtained in violation of his constitutional rights and could
not be used as a predicate violent felony (see CPL 400.15 [7]
                               -2-                105901

[b]; 400.16).1 County Court found that the People had met their
burden of proving the predicate convictions, and sentenced
defendant as a persistent violent felony offender to concurrent
prison terms of 16½ years to life on each count. Defendant
appeals.

      Defendant challenges the use of his 1999 conviction as a
predicate violent felony, asserting that at the time of his plea
to that charge he was not informed that the resulting sentence
would include a mandatory period of postrelease supervision
(hereinafter PRS). "Notwithstanding his failure to appeal from
the [1999] conviction, defendant had an independent statutory
right to challenge its use as a predicate conviction on the
ground it was unconstitutionally obtained" (People v Johnson, 196
AD2d 408, 410 [1993], lv denied 82 NY2d 806 [1993], citing People
v Harris, 61 NY2d 9 [1983]; see People v Abdus-Samad, 69 AD3d
516, 517 [2010], lv denied 15 NY3d 746 [2010]). It is well
established that a court must advise a defendant of the direct
consequences of a plea prior to sentencing, specifically
including the existence and duration of any PRS requirement (see
People v Catu, 4 NY3d 242, 245 [2005]; People v Bolivar, 118 AD3d
91, 93-94 [2014]; People v Brown, 107 AD3d 1303, 1304 [2013]).

      Here, the transcript of defendant's 1999 plea allocution
reveals that he was not advised that his plea would result in a
mandatory period of PRS. Rather, defendant was first informed
about the PRS through the court's pronouncement of his sentence.
Defendant made comments expressing his surprise as to the PRS
immediately thereafter, but he was not afforded an opportunity to
withdraw his plea, either during his original sentencing or when
he was later resentenced to adjust the duration of the PRS to
conform with the requirements of Penal Law § 70.45. Given the
apparent infirmities in defendant's 1999 plea allocution, we find
that County Court erred in accepting the resulting conviction as
a predicate violent felony for the purpose of sentencing
defendant as a persistent violent felony offender (see People v


     1
        Defendant had also been subject to a 1991 conviction for
burglary in the second degree, the validity of which was not
disputed.
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Santiago, 91 AD3d 438, 439 [2012]; People v Brown, 67 AD2d 949,
950 [1979]; see generally People v Province, ___ Misc 3d ___, 2
NYS3d 320 [Sup Ct, NY County 2015]).

      Accordingly, defendant's sentence must be vacated; we
therefore remit to County Court for resentencing.2 In view of
this disposition, we need not address defendant's contention that
the 1999 conviction cannot be used as a predicate violent felony
because he was denied the effective assistance of counsel during
said proceedings.

        Lahtinen, J.P., Rose and Devine, JJ., concur.



      ORDERED that the judgment is modified, on the law, by
vacating the sentence imposed; matter remitted to the County
Court of Albany County for resentencing; and, as so modified,
affirmed.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court




    2
        We note that defendant's 2013 plea agreement appears to
have included a contingency sentence in the event of a successful
appeal.
