People v. Cornell

Smith, J.P., and Sconiers, J. (dissenting).

We respectfully dissent and would affirm the judgment. It is well established that a defendant “ ‘must be aware of the postrelease supervision [PRS] component of [his or her] sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action’ ” (People v Louree, 8 NY3d 541, 545 [2007], quoting People v Catu, 4 NY3d 242, 245 [2005]). We cannot agree with the majority, however, that the plea entered by defendant was not voluntary, knowing and intelligent because County Court did not personally inform defendant at the time of the plea that his sentence would include a period of PRS.

The record establishes that, at the start of the proceedings on the day that this matter was scheduled for trial, the prosecutor stated on the record that the People would permit defendant to plead guilty to the charge of arson in the second degree in full satisfaction of the remaining counts of the indictment, and that County “Court has indicated that upon such a plea [it] would commit to a term of 14 years in state prison plus five years [of] postrelease supervision.” The court then stated, “that’s correct,” and asked whether that was the defense’s understanding of the terms of the plea agreement. After defense counsel answered in the affirmative, defendant attempted to bargain *1160with the court regarding the length of the term of incarceration rather than accepting the plea at that time. After repeatedly indicating that the term of incarceration would remain as set forth in the plea agreement recited by the prosecutor, the court eventually stated that jury selection would proceed.

Later that same day, however, the court stated that it had personally spoken with defendant, in the presence of and with the permission of the prosecutor and defense counsel. The court further stated that it would cap the sentence at 14 years if defendant pleaded guilty, and would permit defense counsel to attempt to obtain a lesser sentence by presenting the court with records regarding defendant’s psychological issues. The court did not repeat the other terms of the plea agreement. Defendant pleaded guilty and, at a later date, was sentenced to a term of incarceration of 14 years plus a five-year period of PRS.

Initially, we conclude that defendant failed to preserve his current contention for our review inasmuch as he failed to move to withdraw the plea or to vacate the judgment of conviction based on that contention (see generally People v Schwandner, 67 AD3d 1481 [2009], lv denied 14 NY3d 805 [2010]). While we of course agree with the majority that, where the record fails to establish that the court, directly or through the prosecutor, “advise[d] a defendant of postrelease supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a postallocution motion” (Louree, 8 NY3d at 545-546), here the record establishes that defendant was in fact advised of the sentence to be imposed, including its PRS component, during what may be characterized under the circumstances of this case as an ongoing plea allocution. “Because 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 is not presently applicable” (People v Murray, 15 NY3d 725, 727 [2010]).

Even assuming, arguendo, that preservation is not required, we would nevertheless reject the contention of defendant that his plea was not knowingly, voluntarily and intelligently entered because the court failed to apprise him that a period of PRS would be imposed as a component of the sentence. The majority is correct that the Court of Appeals has stated that, in order to ensure that a defendant is aware that a period of PRS will be imposed as part of a sentence, “the trial judge must advise a defendant of the direct consequences of a plea and the resulting waiver of rights” (Louree, 8 NY3d at 545; see Catu, 4 NY3d at *1161244-245). In that same case, however, the Court of Appeals also stated that “ ‘[t]he court is not required to engage in any particular litany when allocuting the defendant, but due process requires that the record must be clear that the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant’ ” (Louree, 8 NY3d at 544-545). We have repeatedly concluded that a court need not personally state the conditions of a plea but, rather, the prosecutor may state the conditions provided that the record reflects that the defendant understood his or her choices and made a voluntary and intelligent choice among the alternatives (see e.g. People v Williams, 15 AD3d 863 [2005], lv denied 5 NY3d 771 [2005], lv denied upon reconsideration 5 NY3d 811 [2005]; People v Gress, 4 AD3d 830 [2004], lv denied 2 NY3d 740 [2004]). Here, the prosecutor unequivocally stated at the start of the proceedings on the day of the plea that a five-year period of PRS was a condition of the plea, the court and defense counsel indicated their agreement with that statement, and defendant did not request any alteration with respect to that term of the sentence promise. Thus, the record reflects defendant’s understanding that PRS was a condition of the plea. Present—Smith, J.P., Lindley, Sconiers, Pine and Gorski, JJ.