RIVERA, NOEL R., PEOPLE v ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
338
KA 14-00631
PRESENT: WHALEN, P.J., SMITH, CARNI, LINDLEY, AND NEMOYER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
NOEL R. RIVERA, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County (David
D. Egan, J.), rendered March 21, 2011. The judgment convicted
defendant, upon his plea of guilty, of murder in the second degree and
burglary in the first degree (two counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of murder in the second degree (Penal Law
§ 125.25 [1]) and two counts of burglary in the first degree (§ 140.30
[2], [3]). Defendant was sentenced to an indeterminate term of
incarceration of 15 years to life for murder, to be served
concurrently with determinate terms of 15 years imposed on the
burglary counts. With respect to the burglary counts, defendant was
also sentenced to five-year periods of postrelease supervision (PRS).
We agree with defendant that Supreme Court breached its
obligation to advise him, at the time of the plea, that the sentences
imposed upon his conviction of two counts of burglary would include
periods of PRS (see People v Catu, 4 NY3d 242, 244-245). In these
circumstances, however, we conclude that reversal of the judgment of
conviction and vacatur of the plea are not required (cf. id. at 245;
People v Corsaro, 128 AD3d 1538, 1538). Because “defendant is subject
to ‘lifetime parole supervision, the imposition of postrelease
supervision following his imprisonment for [burglary] is duplicative
and does not deprive him of the benefit of his plea bargain’ ” (People
v Gillard, 126 AD3d 1285, 1286, quoting People v Haynes, 14 AD3d 789,
791, lv denied 4 NY3d 831).
Entered: March 24, 2017 Frances E. Cafarell
Clerk of the Court