Opinion
00298/99, WZP000050.
Decided April 22, 2004.
New York County Defender Services (Catherine Legeros of counsel), for defendant.
Robert M. Morgenthau, District Attorney, New York County (Andrew Seewald of counsel), for plaintiff.
The matter is before the Court on a motion made by the Defendant, Percy Demeritte, pursuant to CPL § 440.10[h], to vacate his conviction entered against him on April 15, 1999. He argues that his guilty plea was involuntary because he was not informed of the five-year period of postrelease supervision which is included in his sentence. The Defendant contends that if he had been advised of the postrelease supervision requirement, he would not have pleaded guilty.
On January 7, 1999, the co-defendant, Daryl Johnson, was initially observed on the covered bed of a commercial pick-up truck. Police were called to investigate. As the officer approached, Mr. Johnson jumped off the truck and attempted to run away. After a brief scuffle with the police officer, the co-defendant jumped into a car driven by the Defendant, Percy Demeritte. Another struggle ensued, and the two defendants managed to drive off before they were stopped a few blocks away. A search of the car revealed stolen power tools and a piece of equipment from the pick-up truck. The police officer also found two pipe wrenches that were allegedly used by the Defendants to break into trucks. The Defendants confessed to the burglary and as well as other burglaries. They were indicted for Robbery in the Second Degree (PL § 160.10), Burglary in the Third Degree (PL § 140.20), Assault in the Second Degree (PL § 120.05), Possession of Burglar's Tools (PL § 140.35), and Resisting Arrest (PL § 205.30). Subsequently, the Defendants were also indicted for a prior burglary.
Although the Defendant faced a potential sentence of fifteen years imprisonment for the robbery and another seven years imprisonment for the earlier burglary, the People recommended that the Defendant receive concurrent sentences of only seven years determinate on the robbery indictment and a concurrent indeterminate sentence of three and one half years to seven years on the burglary indictment. The Defendant submitted a pre-pleading memorandum, prepared by a social worker, in which he attributed his long criminal history to his heroin use. He asked the Court to release him to the care of a drug program for treatment.
Thereafter, the Court offered the Defendant a determinate sentence of five years on the robbery indictment to run concurrently with an indeterminate sentence of two and one-half to five years on the burglary indictment. Since the Defendant had been convicted of felony offenses, two of which were violent felonies, on three separate previous occasions, the sentence was the statutory minimum prison term that the Defendant was eligible to receive from the Court. The requirement of five years of postrelease supervision was a mandatory component of Defendant's sentence. On April 1, 1999, the Defendant pleaded guilty to two counts under the two indictments. On April 15, 1999, the Defendant was sentenced. On January 22, 2004, the Defendant filed a motion to set aside the sentence pursuant to CPL § 440.20.
The Court has a duty to ensure that a defendant understands the effect of his guilty plea. People v. Ford, 86 NY2d 397, 402-403. At first glance, it would appear that People v. Goss ( 286 AD2d 180 [3d Dept 2001]) might be controlling. In that case, the Appellate Division, Third Department, ruled that "supervised release' is a direct consequence of the plea about which a Defendant must be informed. See People v. Goss, 286 AD2d 180 [3d Dept 2001]. However, Goss is factually distinguishable — there, the Defendant, prior to his sentencing, made a motion to vacate his guilty plea because he was not informed of the postrelease supervision requirement. The court held, as a matter of law, that it was error to deny the motion. id.; see also People v. Catu, 193 Misc 2d 623, 629 [Sup Ct, NY County 2002, Berkman, J.], affd 2 AD3d 306 [1st Dept 2003], lv granted 2 NY3d 761.
Similarly, in People v. Jachimowicz ( 292 AD2d 688), while the Appellate Division, Third Department acknowledged that generally this type of error requires preservation, the court granted relief in the interest of justice where no claim had been made prior to sentence. id. at 689; but cf. People v. White, 296 AD2d 867 [4th Dept 2002], lv denied 99 NY2d 540. This Court does not have interest of justice jurisdiction. People v. Catu, 193 Misc 2d at 629; People v. Cooks, 67 NY2d 100; People v. Jian Jing Huang, 1 NY3d 532 (court may exercise its power to allow withdrawal of a plea as a matter of discretion prior to imposition of sentence).
In a recent Second Department case, the court applied harmless error analysis to a similar claim. People v. Melio, 304 AD2d 247 [2d Dept 2003]; see also United States v. Syal, 963 F2d 900, 905 [6th Cir 1992]; United States v. Renaud, 999 F2d 622 [2d Cir 1993]; United States v. Andrades, 169 F3d 131 [2d Cir 1999]; State v. McDermond, 112 Wash App 239. The application of harmless error analysis involves considering whether the failure to inform a Defendant of the postrelease supervision component of his sentence affected his decision to plead guilty. The Defendant must show that he would have insisted on going to trial if properly advised.
Neither the Court of Appeals nor the Appellate Division, First Department has determined whether postrelease supervision is a direct or collateral consequence of a guilty plea. In People v. Ammarito ( 306 AD2d 99 [1st Dept 2003, lv denied 100 NY2d 640), the First Department specifically declined to reach the issue of whether the period of postrelease supervision is a direct consequence about which a Defendant must be informed prior to his plea. However, relief under CPL 440 was not required where knowledge or ignorance of the postrelease supervision requirement did not affect the Defendant's decision to plead guilty, and the failure to inform the Defendant had no effect on his substantial rights as such.
As well, in People v. Catu, supra, the First Department affirmed the lower court's ruling which found that even though the Defendant learned of the postrelease supervision requirement after conviction, the Defendant had submitted no credible evidence that he protested in a timely manner or that he would not have pleaded guilty if he had been advised of the requirement. The lower court found that the Defendant was unworthy of belief, did not make a prompt complaint of the failure to inform him of the postrelease statute, and had failed to show that had he been advised of the postrelease provisions, he would not have pleaded guilty but rather would have gone to trial. People v. Catu, 193 Misc 2d at 629.
The facts of this case are similar to those of People v. Catu. Here, the Defendant failed to present proof that his attorney did not advise him of the postrelease supervision requirement. Nor did he show that knowledge of the postrelease component of the sentence would have affected his decision to plead guilty or that he was prejudiced by the plea. See People v. Nixon, 21 NY2d 338, cert denied sub nom Robinson v. New York, 393 US 1067. In this case, Defendant's attorney negotiated a highly advantageous plea disposition.
Although there is no record evidence that the Defendant knew the precise length of his supervision, it is, nonetheless, reasonable to infer that he anticipated some level of parole supervision. There is no reason to believe that he had any particular objection to the concept of supervised release. The concurrent sentence of two and one-half to five years imprisonment, which he sought and to which he has voiced no objection, carries a period of several years of supervision — the length of time involved depending upon the date of his release. There is no claim that he was unaware of the inevitable parole supervision which would follow his release as a consequence of that plea. As well, the Defendant himself sought a drug program which also involves a period of lengthy supervision.
Moreover, it has previously been held that "[d]elay on the part of the Defendant after learning of his post-release supervision * * * undermine[s] his claim that he would not have pleaded guilty." People v. Melio, 304 AD2d 247, 252 [2d Dept 2003] citing People v. Nixon, 21 NY2d 338, 355; see also People v. Catu, 193 Misc 2d at 627. Here, the Defendant submitted his motion almost five years after his guilty plea.
Finally, because "[p]ostrelease supervision is mandatory for determinate sentences and is automatically included in the sentence," a failure to advise the Defendant of the period of postrelease supervision should not render a plea invalid. People v. White, 296 AD2d 867 [4th Dept 2002], lv denied 99 NY2d 540; see also United States v. Truscello, 168 F3d 61 [2d Cir 1999]; People v. Atson, 2003 WL 1085892, 2003 NY Slip Op 50604U [Sup Ct, Kings County Feb. 7, 2003].
Under these circumstances, Defendant's "plea represent[ed] a voluntary and intelligent choice among the alternative courses of action open to defendant." People v. Ford, 86 NY2d at 403 [internal citations omitted].
Accordingly, the Defendant's CPL § 440 motion to vacate the conviction is denied.