

People v Fox (2016 NY Slip Op 03752)





People v Fox


2016 NY Slip Op 03752


Decided on May 11, 2016


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on May 11, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

JOHN M. LEVENTHAL, J.P.
L. PRISCILLA HALL
SYLVIA O. HINDS-RADIX
HECTOR D. LASALLE, JJ.


2013-04393
2016-03027

[*1]The People of the State of New York, respondent, 
vMichael Fox, appellant. (S.C.I. No. 770/09, Ind. No. 1963/10)


Thomas Theophilos, Buffalo, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Daniel Bresnahan and W. Thomas Hughes of counsel), for respondent.

DECISION & ORDER
Appeals by the defendant from two judgments of the County Court, Nassau County (Gulotta, Jr., J.), both rendered April 24, 2012, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree under Superior Court Information No. 770/09 (Massell, J., at plea), and robbery in the third degree (three counts) under Indictment No. 1963/10 (Gulotta, Jr., J., at plea), upon his pleas of guilty, and imposing sentences.
ORDERED that the judgment rendered April 24, 2012, under Superior Court Information No. 770/09 is reversed, on the law, the plea is vacated, and the matter is remitted to the County Court, Nassau County, for further proceedings in accordance herewith; and it is further,
ORDERED that the judgment rendered April 24, 2012, under Indictment No. 1963/10 is affirmed.
As the People correctly concede, the County Court's failure to advise the defendant at the time of his plea that his sentence for criminal sale of a controlled substance in the third degree would include a period of postrelease supervision prevented his plea from being knowing, voluntary, and intelligent (see People v Catu, 4 NY3d 242, 245; see also People v Cornell, 16 NY3d 801, 802; People v Hill, 9 NY3d 189, 191). Accordingly, the judgment rendered under Superior Court Information No. 770/09 must be reversed, the plea vacated, and the matter remitted to the County Court, Nassau County, for further proceedings (see People v Murrell, 135 AD3d 882; People v Wolfolk, 134 AD3d 1059; People v Fuertes, 105 AD3d 974; People v Wilcox, 70 AD3d 1059).
The defendant's remaining contentions regarding the robbery convictions under Indictment No. 1963/10 are without merit, and those regarding the controlled substance convictions under Superior Court Information No. 770/09 need not be reached in light of our determination.
LEVENTHAL, J.P., HALL, HINDS-RADIX and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


