HERNANDEZ, ORLANDO, PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
596
KA 07-00531
PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ORLANDO HERNANDEZ, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID M. ABBATOY, JR.,
OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (John R.
Schwartz, A.J.), rendered December 11, 2006. The judgment convicted
defendant, upon his plea of guilty, of attempted robbery 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 Monroe County Court for further proceedings on the
indictment.
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of attempted robbery in the second degree
(Penal Law §§ 110.00, 160.10 [1]). Although County Court was required
to sentence defendant to a five-year period of postrelease supervision
based upon his status as a second felony offender (see § 70.45 [former
(2)]; People v Motley [appeal No. 3], 56 AD3d 1158, 1159), at the plea
the court informed defendant only that he would be sentenced to the
“minimum” period of postrelease supervision. Because the court failed
to specify the period of postrelease supervision or the permissible
range of postrelease supervision prior to imposing sentence, reversal
is required (see People v Thomas, 68 AD3d 1445, 1446-1447). We reject
the People’s contention that defendant was required to preserve his
challenge to the voluntariness of the plea based on the court’s
failure, prior to sentencing, to advise him of the period of
postrelease supervision to be imposed or the parameters thereof (see
People v Boyd, 12 NY3d 390, 393; People v Louree, 8 NY3d 541, 545-
546). “When a defendant is not made aware of mandatory postrelease
supervision—or the specific duration or range of that component of
postrelease supervision—prior to the imposition of sentence, the
voluntariness of the plea may be challenged on appeal even absent
preservation of the issue by postallocution motion” (People v Lee, 80
-2- 596
KA 07-00531
AD3d 1072, 1073; see People v Murray, 15 NY3d 725).
Entered: April 29, 2011 Patricia L. Morgan
Clerk of the Court