Defendant pleaded guilty to multiple counts of reckless endangerment and aggravated unlicensed operation of a motor vehicle, with the understanding that the sentences would run concurrently, unless he failed to appear for sentencing. Upon the defendant’s twice failing to appear for sentencing, the third count of his sentence was imposed to run consecutively. Defendant moved to withdraw his plea on the ground that it was not voluntary, and that his allocution failed to establish the element of depraved indifference as to the reckless endangerment counts. Denial of defendant’s motion was affirmed. The Court held defendant’s admission was voluntary despite his answering “I don’t know” in response to the court’s inquiry about his appreciation of the dangers created by his conduct (speeding through a construction zone). Defendant also adopted his counsel’s admission of the details of the charges by failing to object to his counsel’s actions.
People v. Rivera (May 22, 2008)
Defendant, who pleaded guilty to assault and weapons charges as a repeat felony convict, was not advised prior to his sentencing of the duration of the mandatory period of post-release supervision that was a component of his sentence. Defendant contended on appeal that this error made his plea one that was not entered into knowingly, voluntarily and intelligently as a matter of law, and which could be asserted on direct appeal in the absence of a post-allocution motion. Plea is vacated, conviction reversed and matter remitted for further proceedings. The Court of Appeals has now established that “where a trial judge does not fulfill the obligation to advise a defendant of the duration of post-release supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a post-allocution motion.” Here, there was nothing in the record indicating that the duration of defendant’s post-release supervision was made known to him during his allocution. Thus, when the duration of the post-release component was first made known to the defendant at his sentencing, it constituted fundamental reversible error as a matter of law.
Defendant brought a habeas corpus proceeding contending that DOCS lacked authority to add a period of post-release supervision that was not imposed by the sentencing court. The Writ was sustained and DOCS is directed to discharge petitioner. In accordance with the recent Court of Appeals decision in Matter of Garner v. NYSDOCS (April 29, 2008), only a judge may impose a period of post-release supervision as part of a sentence.
Posted on June 2, 2008 at 06:52AM