Opinion
2012-10-25
The PEOPLE of the State of New York, Respondent, v. John H. NEWMAN Jr., Appellant.
Francisco P. Berry, Ithaca, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Joshua S. Shapiro of counsel), for respondent.
Francisco P. Berry, Ithaca, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Joshua S. Shapiro of counsel), for respondent.
Before: ROSE, J.P., SPAIN, KAVANAGH, STEIN and McCARTHY, JJ.
STEIN, J.
Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered December 17, 2009, (1) convicting defendant upon his plea of guilty of the crimes of rape in the third degree (two counts) and criminal sexual act in the third degree and of violating the terms of his probation, and (2) which revoked defendant's probation and imposed a sentence of imprisonment.
While on probation, defendant was charged by indictment with two counts of rape in the third degree and one count of criminal sexual act in the third degree. Defendant pleaded guilty to the indictment and the probation violation the day before his trial was set to commence. The following day, County Court engaged in further colloquy with defendant to advise him that there would be a term of postrelease supervision included in any sentence imposed. Defendant affirmed his understanding of postrelease supervision and expressed his continued desire to plead guilty. County Court thereafter sentenced defendant to concurrent terms of 2 1/2 years in prison plus 10 years of postrelease supervision on each of the indicted charges, as well as a consecutive term of three years in prison plus three years of postrelease supervision on the probation violation. Defendant now appeals and we affirm.
We reject defendant's contention that he was not afforded an opportunity to withdraw his plea after County Court initially failed to inform him of the period of postrelease supervision. Under the facts of this case, we find that County Court satisfied its obligation to ensure that defendant had a full understanding of the consequences of the plea, including postrelease supervision, and that defendant's plea was knowing and voluntary ( see People v. Catu, 4 N.Y.3d 242, 244–245, 792 N.Y.S.2d 887, 825 N.E.2d 1081 [2005];People v. Cullen, 62 A.D.3d 1155, 1156–1157, 880 N.Y.S.2d 211 [2009],lv. denied13 N.Y.3d 795, 887 N.Y.S.2d 544, 916 N.E.2d 439 [2009];People v. Brunelle, 47 A.D.3d 1067, 1067, 850 N.Y.S.2d 668 [2008],lv. denied11 N.Y.3d 786, 866 N.Y.S.2d 612, 896 N.E.2d 98 [2008];compare People v. Thomas, 68 A.D.3d 1445, 1446–1447, 891 N.Y.S.2d 507 [2009] ). Defendant's remaining contention, that he was denied the effective assistance of counsel, is not preserved for our review as the record before us fails to indicate that defendant moved to withdraw his plea or vacate the judgment of conviction ( see People v. Cassara, 88 A.D.3d 1069, 1069, 931 N.Y.S.2d 272 [2011],lv. denied18 N.Y.3d 956, 944 N.Y.S.2d 484, 967 N.E.2d 709 [2012];People v. Mercer, 81 A.D.3d 1159, 1159, 917 N.Y.S.2d 397 [2011],lv. denied19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921 [2012];People v. Bolden, 78 A.D.3d 1419, 1420, 911 N.Y.S.2d 265 [2010],lv. denied16 N.Y.3d 828, 921 N.Y.S.2d 192, 946 N.E.2d 180 [2011] ).
ORDERED that the judgment is affirmed.