People v. Pignataro

Appeal by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Supreme Court, Erie County (Mario J. Rosetti, A.J.), entered April 16, 2003. The order denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment convicting defendant of attempted assault in the first degree.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from an order denying his motion to vacate the judgment of conviction pursuant to CPL 440.10 on the ground that Supreme Court failed to advise him at the time of entry of the plea of guilty that a mandatory period of postrelease supervision would be imposed as part of the sentence (see generally People v Catu, 4 NY3d 242, 244-245 [2005]; People v Goodwill, 20 AD3d 931 [2005]; People v Cintron, 18 AD3d 322 [2005]). The court properly denied the motion to vacate the judgment on the ground that, “ [although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant’s unjustifiable failure to take or perfect an appeal during the prescribed period” (CPL 440.10 [2] [c]; see People v Murray, 2 AD3d 1160, 1161 [2003]; People v Swansbrough, 307 AD2d 389, 390-391 [2003], lv denied 100 NY2d 624 [2003]; see generally People v Cooks, 67 NY2d 100 [1986]). Present— Hurlbutt, J.P, Scudder, Kehoe, Gorski and Hayes, JJ.