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

465
KA 14-01505
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ERIC CHANT, DEFENDANT-APPELLANT.


ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.

DAVID W. FOLEY, DISTRICT ATTORNEY, MAYVILLE (JOSEPH M. CALIMERI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Chautauqua County Court (John T.
Ward, J.), rendered February 11, 2013. The judgment convicted
defendant, upon his plea of guilty, of rape in the first degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of rape in the first degree (Penal Law
§ 130.35 [4]). Defendant contends that reversal of the judgment and
vacatur of the plea are required because County Court failed to advise
him, during the plea allocution, of the specific period of postrelease
supervision that would be imposed at sentencing, and that preservation
of his contention is not required. We conclude on this record that
defendant was required to preserve his contention inasmuch as he had a
reasonable opportunity to challenge the validity of his guilty plea on
the same ground now advanced on appeal, and that defendant failed to
preserve his contention for our review because he did not move to
withdraw the plea or otherwise object to the imposition of postrelease
supervision (see People v Williams, ___ NY3d ___, ___ [Apr. 5, 2016];
People v Crowder, 24 NY3d 1134, 1136-1137; cf. People v Louree, 8 NY3d
541, 545-546).

     Prior to commencement of the scheduled trial, the parties
indicated that the People had offered a plea bargain in which
defendant would plead guilty to rape in the first degree, a class B
violent felony sex offense (see Penal Law §§ 70.02 [1] [a]; 70.80 [1]
[b]; 130.35), in full satisfaction of the indictment, and that
defendant would receive the maximum sentence for that crime. Although
the prosecutor correctly placed on the record that the maximum term of
imprisonment was 25 years (§ 70.02 [3] [a]), he misstated the
applicable period of postrelease supervision as 25 years instead of
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                                                         KA 14-01505

the legal maximum period of 20 years (§ 70.45 [2-a] [f]). Without
acknowledging that misstatement, defense counsel indicated that the
proposed resolution had been discussed in detail with defendant,
including all consequences of the proposed plea bargain, and that
defendant fully understood such consequences and was prepared to plead
guilty. Defendant stated that he understood everything that had been
stated, and the court proceeded with a plea allocution in which it did
not mention postrelease supervision. Immediately following the
allocution, the court set a sentencing date and, in discussing with
defense counsel its willingness to adjourn that date if necessary to
permit additional time for preparation, the court confirmed that the
plea agreement involved a sentence of 25 years of imprisonment with 20
years of postrelease supervision. Defense counsel and the prosecutor
both agreed with the court’s recitation of the agreed-upon sentence,
and neither defendant nor defense counsel objected to the period of
postrelease supervision. At an appearance two months later, the
prosecutor agreed with the court’s statement that there was an agreed-
upon sentence in place, but nevertheless did not object to defense
counsel’s request for an adjournment to further prepare for
sentencing. At the outset of the sentencing proceeding more than two
months after the appearance, the prosecutor stated that the agreement
involved a sentence of 25 years of imprisonment, but misstated the
period of postrelease supervision as two years, which was below the
legal minimum period of five years (§ 70.45 [2-a] [f]). Defense
counsel did not address that misstatement, but nonetheless indicated
that he had discussed with defendant all of the collateral
consequences of the plea as well as the sentence. The court
thereafter imposed the agreed-upon sentence of 25 years of
imprisonment with 20 years of postrelease supervision.

     Where, as here, “a defect in a plea allocution is clear on the
face of the record and implicates due process, the defendant
nonetheless must preserve his or her claim that the defect made the
plea involuntary unless the defendant has no practical ability to do
so” (Williams, ___ NY3d at ___). Although the prosecutor initially
misstated the period of postrelease supervision prior to the plea
allocution and the court failed to mention postrelease supervision
during the allocution, defendant was aware that the sentence included
a postrelease supervision component at the time of the allocution, the
court immediately thereafter confirmed the correct agreed-upon
sentence, and neither defendant nor defense counsel objected to the
period of postrelease supervision or otherwise indicated that there
was any misunderstanding with regard to its length. In addition,
while postrelease supervision was not specifically mentioned at the
subsequent appearance, there was no objection at that time to the plea
or any component of the agreed-upon sentence. The fact that the
prosecutor’s articulation of the postrelease supervision period at the
outset of the sentencing proceeding did not conform with the parties’
previously-expressed understanding of the agreed-upon period provided
the defense with another opportunity to preserve defendant’s current
challenge to his plea and seek clarification of the matter (see id. at
___). We thus conclude that, “[b]ecause defendant had ample
opportunity to raise an objection to the [postrelease supervision]
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                                                         KA 14-01505

component prior to and during these proceedings, defendant was
required to preserve his claim” (Crowder, 24 NY3d at 1136-1137; see
People v Murray, 15 NY3d 725, 726-727). “By failing to seize upon
these opportunities to object or seek additional pertinent
information, defense counsel failed to preserve defendant’s claim for
appellate review” (Williams, ___ NY3d at ___; see Murray, 15 NY3d at
727). We decline to exercise our power to review defendant’s
contention as a matter of discretion in the interest of justice (see
CPL 470.15 [3] [c]).

     We further conclude that defendant, by pleading guilty, forfeited
any challenge to the alleged Brady violation (see People v Chinn, 104
AD3d 1167, 1168, lv denied 21 NY3d 1014). Finally, defendant’s
sentence is not unduly harsh or severe.




Entered:   June 10, 2016                        Frances E. Cafarell
                                                Clerk of the Court
