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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 164
The People &c.,
            Respondent,
        v.
Genna A. Turner,
            Appellant.




          Kimberly J. Czapranski, for appellant.
          Matthew Dunham, for respondent.




LIPPMAN, Chief Judge:

          The primary issue presented by this appeal is whether
defendant was required to preserve her claim that her plea was


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not knowingly and voluntarily entered where she first received
notice of the imposition of a term of postrelease supervision
(PRS) at sentencing, and submitted to sentencing with the PRS
addition.    We reverse, vacate the plea, and remit for further
proceedings, holding that the court must notify defendant of a
term of PRS sufficiently in advance of its imposition that
defendant has the opportunity to object to the deficiency in the
plea proceeding.    In the absence of such an opportunity,
preservation is unnecessary.

             In 2010, defendant assaulted her friend with a knife
and then fled the scene.    Shortly thereafter, a police officer
noticed defendant pacing back and forth in a parking lot about a
mile away.    Without asking her any questions, the officer
handcuffed defendant and placed her in the back of his patrol
car.   She then offered to show the officer where she stashed the
knife.   After locating the knife, the officer arranged a show-up
identification during which the victim identified defendant as
her assailant.    Forty minutes after the arrest, defendant was
placed in an interrogation room.    About twenty minutes later, she
waived her Miranda rights and, during light banter with the
officers, she confessed to the crime.    She added that she
committed the crime with the hope that she would go to jail and
be killed in prison.
             Finding that the arrest lacked probable cause, County
Court suppressed the knife and the incriminating statement

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defendant made in the patrol car.    However, County Court did not
suppress defendant’s interrogation statements, ruling they were
attenuated from the illegal arrest.
          Thereafter, defendant pleaded guilty to an indictment
charging her with attempted murder in the second degree with the
understanding that the court would impose a sentence of 15 years'
imprisonment.   The court failed to mention the period of PRS at
the plea hearing.
          In the middle of the subsequent sentencing proceeding,
the following colloquy transpired:
          "PROSECUTOR: Judge, I believe – I can’t
          recall if the post-release supervision
          period was discussed at the time of plea.    I
          think we should probably make a record of
          that now so it is clear.
          "COURT: I intend to make a five year period
          of post release supervision.
          "PROSECUTOR: Ms. Turner, have you had a
          chance to talk about that with your
          attorney?
          "DEFENDANT: Yes.
          "PROSECUTOR:   Do you understand that[] that’s
          part of your   plea, at the end of your prison
          sentence you   will be on parole supervision
          for a period   of five years?
          "DEFENDANT: Correct.
          "PROSECUTOR: You still wish to go through
          with sentencing today?
          "DEFENDANT: Yes."




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           County Court imposed the sentence promised at the plea,
plus the five years of PRS.
           On appeal, defendant argued, among other things, that
her plea was involuntary while the People countered that
defendant's claim was unpreserved for appellate review.     The
Appellate Division affirmed the judgment.    The majority extended
the holding in People v Murray (15 NY3d 725 [2010]), ruling
defendant's failure to object to the imposition of PRS, despite
her opportunity to do so, rendered her challenge unpreserved (107
AD3d 1543, 1547 [4th Dept 2013]).   Noting that defendant
indicated that she knew of the PRS term before sentencing was
imposed, the majority reasoned that "defendant could have sought
relief from the sentencing court in advance of the sentence’s
imposition," and thus "Louree's rationale for dispensing with the
preservation requirement is not presently applicable" (id. at
1547 [quoting Murray, 15 NY3d at 727]).     Two justices dissented
from this ruling,1 and this appeal is before us by leave of one
of them.
           We held in People v Catu that “[a] trial court has the
constitutional duty to ensure that a defendant, before pleading
guilty, has a full understanding of what the plea connotes and
its consequences” (4 NY3d 242, 244-245 [2005]).    To meet due
process requirements, a defendant “must be aware of the


     1
       The Appellate Division was unanimous in upholding County
Court's suppression ruling.

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postrelease supervision component of that sentence in order to
knowingly, voluntarily and intelligently choose among alternative
courses of action” (id. at 245).    Without such procedures,
vacatur of the plea is required (id.).
           A defendant cannot be expected to object to a
constitutional deprivation of which she is unaware.   As we
recognized in People v Louree, where the defendant was only
notified of the PRS term at the end of the sentencing hearing,
the defendant “can hardly be expected to move to withdraw [the]
plea on a ground of which [he or she] has no knowledge” (8 NY3d
541, 546 [2007]).   And, in that circumstance, the failure to seek
to withdraw the plea or to vacate the judgment does not preclude
appellate review of the due process claim.
           The People would have us analogize this case to People
v Murray (15 NY3d 725), where we held that the defendant’s
challenge to his plea on due process grounds was not preserved
because he was informed at the plea allocution that he would
receive a two-year PRS term, but then was notified at the outset
of the sentencing proceeding that he would receive a three-year
term.   We are not persuaded.   The defendant in Murray knew that
PRS would be a part of the sentence when he accepted the plea and
was therefore mindful that his imprisonment might be extended if
he were to violate the terms of his PRS.   Because Murray was
notified of the PRS term at the plea allocution, and was advised
at the commencement of the sentencing hearing that the PRS term


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had changed, preservation by an objection was both possible and
necessary (see Murray, 15 NY3d at 726-27).


          Here, the court did not advise defendant at the time of
her plea that her sentence would include any PRS, and only
notified her of her PRS term in the middle of sentencing.      The
same reasoning that applied in Catu and Louree applies here: the
defendant did not have sufficient knowledge of the terms of the
plea at the plea allocution and, when later advised, did not have
sufficient opportunity to move to withdraw her plea.
          Moreover, the prosecutor, not the court, led the
sentencing colloquy and may have misled defendant by telling her
that PRS was “part of her plea.”
          Turning to defendant's challenge to the admissibility
of her confession, we do not disturb the denial of this branch of
the suppression motion.   Because application of the attenuation
doctrine in this case involves a mixed question of law and fact
(see e.g. People v Divine, 6 NY3d 790, 791 [2006]), the Court may
reverse the lower court's attenuation finding only if there is no
evidence in the record to support the decision (see People v
Bradford, 15 NY3d 329, 333 [2010]).    Here, there is record
support for the affirmed finding that the custodial confession
was attenuated from the illegal arrest.
          Accordingly, the order of the Appellate Division should
be reversed, defendant’s plea vacated, and the case remitted to
County Court for further proceedings on the indictment.

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People v Genna A. Turner
No. 164




ABDUS-SALAAM, J.(dissenting):

            While I agree with the majority that defendant's
confession was admissible and that branch of her suppression
motion was properly denied, I believe that her Catu argument
required preservation in a manner consistent with the
preservation rules that apply to challenges to the voluntariness
of a guilty plea (see People v Peque, 22 NY3d 168, 182 [2013]
["Under certain circumstances, this preservation requirement
extends to challenges to the voluntariness of a guilty plea"];
see also People v Tyrell, 22 NY3d 359, 364 [2014]; People v
Clarke, 93 NY2d 904, 906 [1999]).    Because the argument was
unpreserved, I   would affirm the Appellate Division order in its
entirety.
            Although the facts and arguments on the merits differ
somewhat, this case is analogous to People v Murray (15 NY3d 725
[2010]).    There we held that preservation of the defendant's
objection to PRS was deemed to be required where defendant was
informed in advance of his plea that he was facing a two-year
period of PRS, but was then informed during sentencing that a
three-year period of PRS would be imposed.   We distinguished


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People v Louree (8 NY3d 541, 546 [2007]), noting that "[b]ecause
[the] defendant could have sought relief from the sentencing
court in advance of the sentence's imposition, Louree's rationale
for dispensing with the preservation requirement" -- that a
defendant cannot move to withdraw his or her plea on a ground of
which he or she has no knowledge -- "is not presently applicable"
(id. at 727).
            To be sure, as noted, the facts here differ from
Murray, in that Murray was informed prior to his plea that some
period of PRS would attach to his sentence, whereas defendant
here was not informed of PRS until sentencing.     In other words,
Murray did not involve a Catu error per se, but rather featured
the somewhat related error we identified in People v Boyd (12
NY3d 390 [2009]).   Despite the distinction between the
substantive defects in the plea and sentencing proceeding here
and in Murray, the principal logic of Murray is that preservation
is required where the defendant has sufficient opportunity to
object to PRS or withdraw his or her plea.
            During sentencing, defendant was informed of the five-
year period of PRS that attached to her guilty plea, and she had
the opportunity to object to the imposition of PRS or to withdraw
her plea.   At the sentencing hearing, after being informed by the
prosecutor that PRS had not been discussed during the plea
allocution, the trial judge stated to defendant, "I intend to
make a five year period of [PRS]."      The prosecutor asked


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defendant whether she had discussed PRS with her attorney, to
which she answered "Yes."   The prosecutor then clarified by
asking defendant whether she understood that PRS was a part of
her plea, and that "at the end of [her] prison term [she would]
be on parole supervision for a period of five years."   Defendant
responded, "Correct."   The prosecutor asked defendant whether she
wished to continue with the sentencing, and she answered, "Yes."
           Louree recognized that a defendant has the opportunity
to withdraw a plea "any time before imposition of the sentence"
(8 NY3d at 545-546 [emphasis in original]).   After discussing
PRS, but before the sentence was actually imposed here,
defendant's counsel asked the trial court a number of questions
concerning completion of the plea-in-satisfaction form, counsel
requested that a letter written by defendant be made part of the
sentencing memorandum, and also requested that the trial court
make a recommendation to the Department of Corrections that
defendant be designated a special needs inmate.   Defendant had
ample opportunity to object to the imposition of PRS or to
withdraw her plea before the sentence was imposed.   Thus,
preservation of her Catu argument was required, and defendant did
not preserve that argument.
          In finding the error unpreserved, I do not wish to
suggest any endorsement of the trial judge's failure to more
directly discuss the parameters of the plea and sentence with
defendant at the sentencing proceeding.   We held in Louree that a


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trial judge is charged with ensuring that a defendant's plea is
knowing, voluntary and intelligent (8 NY3d at 545-546).         It would
certainly have been a better practice at sentencing for the trial
judge, rather than the prosecutor, to have conducted the
questioning.
            Nonetheless, the trial judge here clearly stated to the
defendant that he intended to impose a five-year period of PRS to
defendant's sentence.    The trial judge presided over the colloquy
between the prosecutor and defendant, where defendant indicated
that she understood PRS, had spoken with counsel about PRS, and
stated that she wished to continue with sentencing.         Based on
that discussion, the trial judge would have no reason to believe
that defendant should be offered her plea back or that she
intended to withdraw her plea.
            Because defendant had ample opportunity to object to
the imposition of PRS and to request withdrawal of her plea, she
was required to preserve her Catu argument.          Therefore, I dissent
and would affirm the Appellate Division order.
*   *   *    *   *   *   *   *    *      *   *   *     *   *   *    *   *
Order reversed, defendant's plea vacated and case remitted to
County Court, Monroe County, for further proceedings on the
indictment. Opinion by Chief Judge Lippman. Judges Graffeo,
Read, Pigott and Rivera concur. Judge Abdus-Salaam dissents in
an opinion in which Judge Smith concurs.

Decided October 23, 2014




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