                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 2, 2016                      106997
________________________________

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

FRANCIS S. WATKINS,
                    Appellant.
________________________________


Calendar Date:   April 28, 2016

Before:   McCarthy, J.P., Garry, Egan Jr., Devine and Aarons, JJ.

                             __________


     Marcy I. Flores, Warrensburg, for appellant.

      J. Anthony Jordon, District Attorney, Fort Edward (Jason
Weinstein, New York Prosecutors Training Institute, Inc., Albany,
of counsel), for respondent.

                             __________


McCarthy, J.P.

      Appeal from judgment of the County Court of Washington
County (McKeighan, J.), rendered March 14, 2013, convicting
defendant upon his plea of guilty of the crimes of burglary in
the second degree and grand larceny in the fourth degree.

      Defendant pleaded guilty to an indictment charging him with
burglary in the second degree and grand larceny in the fourth
degree. During the plea proceedings, County Court explained to
defendant that, under the terms of the plea agreement, he would
be sentenced as a second felony offender to a prison term of
between 6 and 10 years on his conviction of burglary in the
second degree. The court further advised him that, if it decided
to sentence him to more than 10 years after reviewing the
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presentence investigation report, he would be given an
opportunity to withdraw his plea. The court, however, failed to
discuss the plea's terms in relationship to postrelease
supervision to be imposed on the burglary conviction or the
sentence to be imposed on his conviction of grand larceny in the
fourth degree. Defendant was subsequently sentenced to prison
terms of seven years on the burglary conviction, to be followed
by three years of postrelease supervision, and 1½ to 3 years on
the grand larceny conviction, to run concurrently. Defendant
appeals, and we reverse.

      We agree with defendant that his plea was not knowing,
voluntary and intelligent given that County Court failed to set
forth the terms of the plea agreement before accepting
defendant's plea. Because defendant could not be expected to
move to withdraw his plea based on terms of which he had no
knowledge, he was not required to make such a motion in order to
preserve these claims (see People v Peque, 22 NY3d 168, 182
[2013], cert denied ___ US ___, 135 S Ct 90 [2014]).1 Assuming
for the sake of argument that preservation was required, we would
nonetheless take corrective action in the interest of justice.
Given that County Court failed to inform defendant of the direct
consequences of his conviction as to a particular crime and as to
any postrelease supervision, defendant's plea was not knowing,
voluntary and intelligent (see People v Catu, 4 NY3d 242, 244-245
[2005]; People v Vences, 125 AD3d 1050, 1050-1052 [2015]).
Accordingly, we reverse and remit for further proceedings in
accordance with this decision. This determination renders
defendant's remaining contentions academic.



    1
        We reject the People's contention that preservation was
required as to the postrelease supervision issue because County
Court, immediately before imposing sentence, mentioned a maximum
of between "two-and-a-half and five post" in describing the plea.
This late description – legalistic shorthand that did not even
include the term "supervision" – is readily distinguishable from
the type of "ample opportunity" to contest the imposition of
postrelease supervision that gives rise to a preservation
requirement (People v Crowder, 24 NY3d 1134, 1136 [2015]).
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     Garry, Egan Jr., Devine and Aarons, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
