People v. Bracey

• Decision Date: 29 December 2005
• Docket Number: 6774.
• Citation: 2005 NY Slip Op 10209,24 A.D.3d 363,807 N.Y.S.2d 34
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DARREN BRACEY, Appellant.
• Court: New York Supreme Court — Appellate Division

24 A.D.3d 363

807 N.Y.S.2d 34

2005 NY Slip Op 10209

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DARREN BRACEY, Appellant.

6774.

Appellate Division of the Supreme Court of the State of New York, First Department.

December 29, 2005.

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered May 9, 2002, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree and sentencing him, as a second felony offender, to a term of eight years, to be followed by five years of postrelease supervision, reversed, on the law, the plea vacated, and the matter remanded for further proceedings in accordance with this decision.

On April 18, 2002, defendant entered a plea of guilty to criminal possession of a weapon in the second degree, in full satisfaction of the indictment against him. His attorney stated on the record that the agreed-upon sentence was to be eight years, with a permanent order of protection and defendant's right to appeal waived. Under questioning by the court, defendant confirmed his understanding of the plea agreement as presented and its voluntary nature. No mention of postrelease supervision was made at the plea proceeding, nor was there any allocution of defendant about the constitutional rights he was waiving by pleading guilty.

On May 9, 2002, defendant was sentenced to the agreed-upon term of eight years, after which the court stated, "Permanent order of protection is granted. And also there will be five years of post-release [sic] supervision, parole supervision as required by statute."

"A trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences" (People v. Ford, 86 NY2d 397, 402-403 [1995]). Although not required to engage in any particular litany in accepting a plea (id. at 403), the court must advise the defendant, inter alia, of the constitutional rights he would be waiving by pleading guilty, and the record must show that the defendant "intelligently and understandingly rejected (these rights)" (People v. Harris, 61 NY2d 9, 17 [1983], quoting Carnley v. Cochran, 369 US 506, 516 [1962]). The court must also advise the defendant of the "direct" consequences of the plea, i.e., those that have a "definite, immediate and largely automatic effect on defendant's punishment" (Ford, 86 NY2d at 403), and the record must show that the defendant's plea "`represents a voluntary and intelligent choice among the alternative courses of action open to (him)'" (Harris, 61 NY2d at 19).

Postrelease supervision being a direct consequence of a criminal conviction, the failure of a court to advise thereof requires reversal of the conviction (People v. Catu, 4 NY3d 242 [2005]). Accordingly, although defendant failed to preserve this issue for appeal, the error here is so fundamental as to require reversal.

Concur — Ellerin, Williams and Catterson, JJ.

Marlow, J.P., and McGuire, J., dissent in a memorandum by McGuire, J., as follows:

The majority's reliance on People v. Catu (4 NY3d 242 [2005]) is misplaced. In Catu, the claim that the defendant had not been advised prior to pleading guilty of the requirement of a period of postrelease supervision was raised in the defendant's first submission to the court following sentence, a CPL 440.10 motion (see People v. Catu, 2 AD3d 306 [2003]). Here, by contrast, although defendant submitted a pro se motion to vacate the plea less than two weeks after he was sentenced, he never raised his current claim that he had not been advised...