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

1019
KA 13-01884
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

EDIBERTO RODRIGUEZ, DEFENDANT-APPELLANT.


MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

EDIBERTO RODRIGUEZ, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered October 7, 2013. The judgment convicted
defendant, upon his plea of guilty, of assault in the second degree.

     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 Supreme Court, Erie County, for further proceedings on
the indictment.

     Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty, of assault in the second degree (Penal Law §
120.05 [9]). As the People correctly concede, “[b]ecause the court
failed to specify the period of postrelease supervision or the
permissible range of postrelease supervision prior to imposing
sentence, reversal is required” (People v Hernandez, 83 AD3d 1581,
1581; see People v Turner, 24 NY3d 254, 258; People v Catu, 4 NY3d
242, 245). We nevertheless reject defendant’s contention in his pro
se supplemental brief that the matter must be remitted to a different
Supreme Court Justice inasmuch as he has “failed to show the existence
of any actual impropriety, prejudice, or bias with respect to”
sentencing or the manner in which the Justice herein conducted the
proceedings (Matter of Serkez v Serkez, 34 AD3d 592, 592; see People v
Weekes, 46 AD3d 583, 584-585, lv denied 10 NY3d 845; see generally
Judiciary Law § 14; People v Moreno, 70 NY2d 403, 405).

     In view of our decision, we do not address defendant’s remaining
contentions.

Entered:    October 9, 2015                        Frances E. Cafarell
                                                   Clerk of the Court
