People v. Stewart

• Decision Date: 24 May 2011
• Docket Number: April 5,2011.
• Parties: The PEOPLE of the State of New York, Respondent,v.Andre STEWART, Appellant.
• Court: New York Court of Appeals Court of Appeals

16 N.Y.3d 839
947 N.E.2d 1182
923 N.Y.S.2d 404
2011 N.Y. Slip Op. 02718

The PEOPLE of the State of New York, Respondent,
v.
Andre STEWART, Appellant.

April 5

2011.

Court of Appeals of New York.

[923 N.Y.S.2d 404] Legal Aid Society, New York City (Alan S. Axelrod and Steven Banks of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York City (Susan Axelrod and Vincent Rivellese of counsel), for respondent. [16 N.Y.3d 840]

[947 N.E.2d 1182]

OPINION OF THE COURT

MEMORANDUM.

The order of the Appellate Division should be affirmed.

In 2003, when defendant pleaded guilty to attempted robbery in the first degree, the court advised him that he would receive a 3 1/2-year prison term with “maximum post-release supervision time.” At sentencing, the court pronounced the determinate sentence along with a five-year term of postrelease supervision. Defendant did not object to the imposition of postrelease supervision at sentencing nor did he pursue a direct appeal. However, in 2008, he filed a CPL 440.10 motion seeking vacatur of his plea based on

[947 N.E.2d 1183 , 923 N.Y.S.2d 405]

People v. Catu, 4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081 (2005), contending that his plea was involuntary because the court failed to advise him of the specific term of postrelease supervision during the plea proceeding. Supreme Court denied the motion, relying on People v. Louree, 8 N.Y.3d 541, 838 N.Y.S.2d 18, 869 N.E.2d 18 (2007) for the proposition that defendant's Catu claim could not be raised in a CPL 440.10 motion. The Appellate Division affirmed, as do we.

In Louree, we held that when “a trial judge does not fulfill the obligation to advise a defendant of postrelease supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal” because the error is evident from the transcript of the plea proceeding ( id. at 545–546, 838 N.Y.S.2d 18, 869 N.E.2d 18). Catu claims have therefore been treated no differently than any other failure to advise a defendant of a direct consequence of a plea under the rule articulated in People v. Ford, 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265 (1995). We further observed in Louree that, since the omission is clear from the face of the trial record, a Catu claim generally cannot be raised in a CPL 440.10 motion ( Louree, 8 N.Y.3d at 546, 838 N.Y.S.2d 18, 869 N.E.2d 18 n; see CPL 440.10[2][c] ).

Defendant's contention that Louree changed the law...