Thursday, June 15, 2006

AD4: preservation not required for argument based on trial court's failure to advise defendant of postrelease supervision at time of plea

People v Simpson, __ AD3d __ [available here]

During a plea colloquy, the trial court must inform a defendant of the "direct consequences" of a plea. A term of postrelease supervision is "a direct consequence of a criminal conviction", and failure of the "trial court to advise of postrelease supervision requires reversal of the conviction." (People Catu, 4 NY3d 242, 244-245 [2005].) Thus, if a defendant is not informed on the record of postrelease supervision, the plea must be vacated. The somewhat open question has always been whether the issue needs to be preserved, i.e. does a defendant have to make a 440 motion to vacate his plea or otherwise protest the trial court's failure to include the postrelease supervision on the record before challenging the plea on appeal? The Court of Appeals decision in Catu certainly suggests that preservation is not required, unequivocally holding that "the failure of a court to advise of postrelease supervision requires reversal of conviction." (Catu, 4 NY3d at 245.) The Fourth Department expressly decided the question in the Simpson decision handed down last Friday, and confirmed the implication of Catu; from the decision:

Defendant contends that his plea was not knowingly and voluntarily entered because County Court failed to advise him of the mandatory period of postrelease supervision at the time of the plea orat the sentencing proceeding and he had no notice of the mandatory period of postrelease supervision inasmuch as the court did not impose a period of postrelease supervision at sentencing (cf. People v Vance, 27 AD3d 1015). We agree. "[T]he failure of a court to advise of postrelease supervision requires reversal of the conviction" (People v Catu, 4 NY3d 242, 245). To the extent that prior decisions of this Court would require preservation of defendant's contention (see e.g. People v Pan Zhi Feng, 15 AD3d 862, lv denied 5 NY3d 809, 812; People v Roddy, 295 AD2d 965), those decisions are no longer to be followed.

(Simpson, __ AD3d at __.)

This decision clears up what was sometimes a problem for defendants trying to raise this issue. If a defendant argued on a 440 motion to the trial court that the postrelease supervision was not on the record, the trial court could duck the issue by claiming the argument could be raised on direct appeal. If a defendant decided to raise the issue for the first time on direct appeal, the Fourth Department would sometimes hold a 440 motion was necessary to preserve the issue. It was the classic "go ask your father/go ask your mother" situation. The Simpson decision eliminates this problem and brings some clarity to a previously murky area of law.

Note, though, that the Court goes out of its way to note that the postrelease supervision was not mentioned at the plea colloquy and not imposed at sentencing. (Id.) This could be significant. I have seen cases where the postrelease supervision is not part of the plea colloquy, but is mentioned by the judge at sentencing (i.e. "I hereby sentence you to X number of years to be followed by 5 years postrelease supervision"). In that case, I could see the Fourth
Department requiring some sort of objection at sentencing to preserve the issue for review.