| 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
v
Michael 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