Opinion
No. KA 06-03570.
December 21, 2007.
Appeal from an order of the Orleans County Court (James P. Punch, J), entered June 15, 2006. The order granted defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting defendant, upon his plea of guilty, of sodomy in the first degree (two counts).
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION, FOR APPELLANT.
EOANNOU LANA D'AMICO, BUFFALO (JEREMY D. SCHWARTZ OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Present: Hurlbutt, J.P., Gorski, Martoche, Lunn and Peradotto, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed.
Memorandum: The People appeal from an order granting defendant's CPL 440.10 motion and vacating the judgment convicting defendant, upon his plea of guilty, of two counts of sodomy in the first degree (Penal Law former § 130.50 [1]). County Court properly vacated the judgment on the ground that defendant was not advised before entering his plea that he would be subject to a five-year period of postrelease supervision ( see § 70.45; People v Catu, 4 NY3d 242, 244-245). Contrary to the People's contention, defendant's motion is not barred by CPL 440.10 (2) (c) inasmuch as the court did not explicitly impose postrelease supervision at the time of sentencing, and defendant did not become aware of its imposition until after his direct appeal from the judgment of conviction was decided. Thus, defendant did not "unjustifiabl[y]" fail to raise the issue on his direct appeal ( id.; cf. People v Louree, 8 NY3d 541, 545-546).
Finally, we note that the People contended for the first time at oral argument of this appeal that we should apply the reasoning of the Second Circuit Court of Appeals in Earley v Murray ( 451 F3d 71, reh denied 462 F3d 147) to this case. We do not address that contention, in the interest of fairness to defendant. That case was decided approximately six months before the People submitted their brief on appeal, which contained no reference to that case, nor did they submit a supplemental brief addressing the applicability of that case prior to oral argument of this appeal.