People v. Chiacchiarini

• Decision Date: 19 January 2012
• Citation: 936 N.Y.S.2d 394,91 A.D.3d 1118,2012 N.Y. Slip Op. 00256
• Parties: The PEOPLE of the State of New York, Respondent, v. Albert F. CHIACCHIARINI, Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00256
91 A.D.3d 1118
936 N.Y.S.2d 394

The PEOPLE of the State of New York, Respondent,
v.
Albert F. CHIACCHIARINI, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 19, 2012.

[936 N.Y.S.2d 395]

Brent R. Stack, Valatie, for appellant.

Joseph G. Fazzary, District Attorney, Watkins Glen (Matthew C. Hayden of counsel), for respondent.

Before: PETERS, J.P., ROSE, McCARTHY, GARRY and EGAN JR., JJ.

EGAN JR., J.

[91 A.D.3d 1118] Appeals (1) from a judgment of the County Court of Schuyler County (Argentsinger, J.), rendered June 25, 2009, which resentenced defendant following his conviction upon his plea of guilty of the crime of sodomy in the first degree (two counts), and (2) by permission, from an order and amended order of said court, entered March 17, 2011 and August 10, 2011, which, among other things, denied defendant's motions pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In May 2000, defendant pleaded guilty to two counts of sodomy in the first degree and was sentenced to two consecutive 10–year prison terms. No mention of the mandatory period of postrelease supervision required pursuant to Penal Law § 70.45 was made either during the plea colloquy or at sentencing, nor did County Court actually impose a period of postrelease supervision at the time of sentencing. Nearly seven years later, defendant filed

[936 N.Y.S.2d 396]

the first of two pro se motions pursuant to CPL 440.10 seeking to vacate his conviction upon the ground that his plea was involuntary due to an alleged Catu violation ( see People v. Catu, 4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081 [2005] ) and, further, that he had been denied the effective assistance of counsel. In June 2009, and with the People's consent, County Court resentenced defendant pursuant to Penal Law § 70.85 to two consecutive 10–year prison terms with no period of postrelease supervision. County Court also denied defendant's CPL article 440 motions,¹ as well as his subsequent motion for reconsideration. These appeals ensued.

[91 A.D.3d 1119] Defendant's principal argument on appeal is that County Court's failure to apprise him—at the time of his plea—that he was subject to a mandatory period of postrelease supervision renders the underlying plea involuntary and mandates the vacatur thereof under Catu—even though no period of postrelease supervision ever was imposed by either the sentencing court or the Department of Corrections...