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

486
KA 09-02521
PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BARRY K. VERHOW, DEFENDANT-APPELLANT.


ROBERT TUCKER, CANANDAIGUA, FOR DEFENDANT-APPELLANT.

BARRY K. VERHOW, DEFENDANT-APPELLANT PRO SE.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (JACQUELINE MCCORMICK OF
COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Wayne County Court (John B. Nesbitt, J.), dated September 29,
2009. The order denied the motion of defendant to vacate a judgment
of conviction pursuant to CPL article 440.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law, the sentence is set aside and the
matter is remitted to Wayne County Court for further proceedings in
accordance with the following Memorandum: As defendant contends and
the People correctly concede, County Court erred in denying
defendant’s pro se motion pursuant to CPL article 440 insofar as it
sought to set aside the sentence imposed upon his conviction of
burglary in the first degree (Penal Law § 140.30 [2]) and sexual abuse
in the first degree (§ 130.65 [1]) and in failing to proceed with
resentencing pursuant to Penal Law § 70.85 (cf. People v Rucker, 67
AD3d 1126, 1127-1128). It is undisputed that, at the time of the
plea, defendant was not advised of the period of postrelease
supervision and the sentence was imposed without a period of
postrelease supervision. Defendant moved both to set aside the
sentence and to vacate the judgment of conviction (cf. People v
Capers, 68 AD3d 427; People v Jordan, 67 AD3d 1406, 1407). “The . . .
legislative history [of section 70.85] indicates that it was . . .
intended, in part, to avoid the need to vacate guilty pleas under
[People v Catu (4 NY3d 242)] when defendants are not properly advised
of mandatory terms of postrelease supervision” (Rucker, 67 AD3d at
1127; see People v Williams, ___ AD3d ___ [Mar. 25, 2011]; Governor’s
Approval Mem, Bill Jacket, L 2008, ch 141, at 13-14). The court may
resentence a defendant pursuant to the statute when his or her
qualifying determinate sentence “is again before the court pursuant to
[Correction Law § 601-d] or otherwise, for consideration of whether to
                                 -2-                           486
                                                         KA 09-02521

resentence” (§ 70.85). We conclude that Penal Law § 70.85 is
applicable where, as here, the defendant seeks to set aside his or her
sentence and to vacate the judgment of conviction, inasmuch as the
matter is before the court for consideration of a resentence (cf.
People v Grimm, 69 AD3d 1231, 1232 n 2, lv denied 14 NY3d 888).
Pursuant to section 70.85, “the court may . . .[,] only on consent of
the district attorney, re-impose the originally imposed determinate
sentence of imprisonment without any term of post[]release
supervision, which then shall be deemed a lawful sentence” (see
generally People v Russ, 68 AD3d 1703). In the event that the
District Attorney refuses to consent to the imposition of the original
sentence without a period of postrelease supervision, we conclude that
the court must grant the alternative relief sought by defendant and
vacate the judgment of conviction inasmuch as the court failed to
advise defendant of the period of postrelease supervision at the time
of the plea (see Catu, 4 NY3d at 244-245; Grimm, 69 AD3d at 1232; cf.
Williams, ___ AD3d at ___), thereby returning defendant to his “status
before the constitutional infirmity occurred” (People v Hill, 9 NY3d
189, 191, cert denied 553 US 1048). We therefore reverse the order,
set aside the sentence and remit the matter to County Court for
further proceedings pursuant to Penal Law § 70.85 and, if necessary
based on the response of the District Attorney, for further
proceedings on the indictment.




Entered:   April 29, 2011                      Patricia L. Morgan
                                               Clerk of the Court
