         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1265
KA 09-01179
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL A. COLON, DEFENDANT-APPELLANT.


SHIRLEY A. GORMAN, BROCKPORT, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered October 3, 2008. The judgment
convicted defendant, upon his plea of guilty, of criminal sexual act
in the first 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 Supreme Court, Monroe County, for further proceedings
on the indictment.

     Memorandum: On appeal from a judgment convicting him upon his
guilty plea of criminal sexual act in the first degree (Penal Law §
130.50 [3]), defendant contends that reversal is required because
Supreme Court failed to advise him at the time of his plea that his
sentence would include a period of postrelease supervision (PRS). We
agree.

     Defendant was indicted on six felony offenses, including two
counts of criminal sexual act in the first degree, a class B felony.
Defendant entered a plea of not guilty to all counts of the
indictment. On the day the case was scheduled for a pretrial hearing,
the court, following a conference in chambers, placed the People’s
plea offer on the record. According to the court, the offer required
defendant to plead guilty to a class B felony in satisfaction of the
indictment on the condition that he receive a sentence of no less than
20 years in prison. The prosecutor confirmed that this accurately
conveyed the People’s offer, but added that he was also asking for an
order of protection in favor of the victims. The court then addressed
defendant directly, stating that, although the prosecutor was asking
for a sentence of between 20 and 25 years, the court “would consider
the sentence of 20 years in the New York State Department of
Corrections.” Neither the court nor the prosecutor stated that the
offer required a term of PRS. Defense counsel requested an
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                                                         KA 09-01179

adjournment to permit his client to consider the offer. At the next
scheduled court appearance, the court again placed the People’s plea
offer on the record. Again, no mention was made of PRS. Defendant
rejected the offer.

     On the day that defendant’s jury trial was scheduled to commence,
the prosecutor reiterated the People’s plea offer in slightly
different terms, stating that defendant would be required to plead
guilty to one class B violent felony offense in satisfaction of all
charges, in return for a sentence promise of at least 20 but not more
than 25 years’ imprisonment and a mandatory period of five years of
PRS. The court informed defendant that it “would strongly consider
the 20 years rather than the 25 years” if defendant pleaded guilty,
but the court did not mention that its sentence commitment included a
mandatory period of PRS, or that the court would impose a period of
PRS as part of its sentence.

     Following a one-hour recess, the purpose of which was to give
defendant time to discuss the offer with his attorney, the court
reiterated the terms of the plea offer and sentence promise, but again
did not mention PRS. Defense counsel then stated that defendant
wished to accept the offer provided that defendant could enter an
Alford plea, which neither the People nor the court opposed. The
court then began a plea colloquy with defendant, reviewing the rights
he would be forfeiting by pleading guilty.

     During the colloquy, the court asked defendant, “Has anybody
promised you anything other than what we placed on the record all
morning, the first time around 9:30 and right now around 25 after
11:00; anybody promised you anything else?” Defendant answered “no.”
Later in the colloquy the court asked defendant, “Do you understand
that I made a promise to you that upon your guilty plea I’m going to
consider the sentence range from 20 to 25, but right now my position
is because of everything I heard, I’m leaning toward 20.” Defendant
answered “yes.” The court did not mention any period of PRS, nor did
the prosecutor or defense counsel. The court subsequently accepted
defendant’s guilty plea to one count of criminal sexual act in the
first degree, and at sentencing imposed a determinate term of
imprisonment of 20 years plus five years of PRS. This appeal ensued.

     As the Court of Appeals has repeatedly advised, “[a] trial court
has the constitutional duty to advise a defendant of the direct
consequences of a guilty plea, including any period of postrelease
supervision (PRS) that will be imposed as part of the sentence”
(People v Cornell, 16 NY3d 801, 802, citing People v Catu, 4 NY3d 242,
244-245). “Although the court is not required to engage in any
particular litany when allocuting the defendant, due process requires
that the record must be clear that the plea represents a voluntary and
intelligent choice among the alternative courses of action open to the
defendant” (id. [internal quotation marks omitted]). “[T]he failure
of a court to advise of postrelease supervision requires reversal of
the conviction” (id.). “Further, ‘where a trial judge does not
fulfill the obligation to advise a defendant of postrelease
supervision during the plea allocution, the defendant may challenge
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                                                         KA 09-01179

the plea as not knowing, voluntary and intelligent on direct appeal,
notwithstanding the absence of a postallocution motion’ ” (id.,
quoting People v Louree, 8 NY3d 541, 545-546).

     We conclude that the record does not make clear, as required by
Cornell and Catu, that defendant was aware when he pleaded guilty that
the terms of the court’s promised sentence included a period of PRS.
Although the prosecutor at one point described a period of PRS as
mandatory, the court did not state that it would impose a period of
PRS as part of its sentence; rather, the court repeated several times
its promise to sentence defendant to no more than 25, and as few as
20, years’ imprisonment. It is also true, as the People note, that
the attorney who represented defendant at the time of the plea
subsequently testified at a later hearing that he advised defendant
that there would be a mandatory period of 5 years’ PRS if he were
convicted after trial. That attorney did not testify, however, that
he advised defendant that he would be sentenced to PRS if he pleaded
guilty or that the court’s sentence promise included PRS. Under the
circumstances, it cannot be said that defendant necessarily was aware
that he would be sentenced to a period of PRS if he pleaded guilty.
Indeed, defendant may reasonably have believed that the court’s
repeated failure to mention a period of PRS indicated that it was not
a part of the sentence promised (see People v Cornell, 75 AD3d 1157,
1158, affd 16 NY3d 801). In any event, the fact that either the
prosecutor or defense counsel mentioned a period of PRS earlier in the
plea bargaining process “does not excuse the court from fulfilling its
constitutional duty” (id.).

     In sum, because the record here is not clear with respect to
defendant’s knowledge of the terms of his sentence, the guilty plea
must be vacated even in the absence of a postallocution motion to
withdraw the plea or to vacate the judgment of conviction specifically
directed at the Catu error (see Cornell, 16 NY3d at 802). We do not
agree with the People that the “rationale for dispensing with the
preservation requirement is not presently applicable” because
defendant was advised by the court prior to the imposition of sentence
that he would be subjected to a term of PRS (People v Murray, 15 NY3d
725, 727). In any event, even assuming, arguendo, that the
preservation requirement applies, we would nonetheless exercise our
power to address defendant’s challenge to the voluntariness of his
plea as a matter of discretion in the interest of justice (see CPL
470.15 [3] [c]).

     We have reviewed defendant’s remaining contentions and conclude
that they lack merit.




Entered:   December 21, 2012                    Frances E. Cafarell
                                                Clerk of the Court
