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

272
KA 13-01070
PRESENT: SCUDDER, P.J., LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CAMERON S. RIVES, DEFENDANT-APPELLANT.


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

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered August 13, 2012. The judgment convicted
defendant, upon his plea of guilty, of robbery in the first degree,
robbery in the second degree, burglary in the first degree, burglary
in the second degree, assault in the third degree and petit larceny.

     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 Cattaraugus County Court for further proceedings on the
indictment.

     Memorandum: On appeal from a judgment convicting him upon his
guilty plea of, inter alia, robbery in the first degree (Penal Law §
160.15 [4]), defendant contends that reversal is required because
County Court failed to advise him at the time of his plea that his
sentence would include a period of postrelease supervision (PRS). At
an appearance prior to his plea, PRS was mentioned without
specification of the term thereof, and specific terms of PRS were
mentioned at two subsequent appearances. At the time of defendant’s
plea, PRS was not mentioned, and it was not until the conclusion of
the sentencing hearing that County Court informed defendant of the
term of PRS.

     We agree with defendant that reversal is required. Contrary to
the People’s contention, defendant was not required to preserve for
our review his challenge to the imposition of PRS under these
circumstances. “A defendant cannot be expected to object to a
constitutional deprivation of which [he] is unaware . . . [W]here 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’
. . . And, in that circumstance, the failure to seek to withdraw the
plea or to vacate the judgment does not preclude appellate review of
                                 -2-                           272
                                                         KA 13-01070
the due process claim” (People v Turner, 24 NY3d 254, 258).
Furthermore, “[b]ecause a defendant pleading guilty to a determinate
sentence must be aware of the [PRS] component of that sentence in
order to knowingly, voluntarily and intelligently choose among
alternative courses of action, the failure of a court to advise of
postrelease supervision requires reversal of the conviction” (People v
Catu, 4 NY3d 242, 245). “[T]he record does not make clear, as
required by Catu, that at the time defendant took his plea, he was
aware that the terms of the court’s promised sentence included a
period of PRS” because only the term of incarceration of 20 years was
stated on the record (People v Cornell, 16 NY3d 801, 802). While a
term of PRS was mentioned earlier in the plea negotiations, it is
undisputed that there was no mention of PRS at the plea proceeding
and, based on our review of the record, we conclude that defendant was
not “advised of what the sentence would be, including its PRS term, at
the outset of the sentencing proceeding” (People v Murray, 15 NY3d
725, 727). We therefore reverse the judgment, vacate the plea, and
remit the matter to County Court for further proceedings on the
indictment. In light of our determination, we do not reach
defendant’s remaining contention.




Entered:   March 20, 2015                      Frances E. Cafarell
                                               Clerk of the Court
