On November 20, 2006, the defendant filed a motion pursuant to Criminal Procedure Law sections 440.10 and 440.20 requesting that his sentence or conviction be set aside or, in the alternative, that he be granted of a hearing to determine whether such sentence or conviction should be set aside on the grounds that the defendant was never informed that he would be subject to a mandatory period of post-release supervision after he served a determinate sentence of incarceration in state's prison.

On October 3, 2001, the defendant plead guilty to a lesser included count under Indictment number 2001-170 of Attempted Robbery in the Second Degree with a promised sentence of three years incarceration. The defendant also executed a waiver of right to appeal. On November 27, 2001, the Court allowed the defendant to plead guilty to a second indictment to one count of Assault in the Second Degree under Indictment number 2001-288 and with a pre-sentence report already prepared in conjunction to Indictment 2001-170, the Court sentenced the defendant to both indictments. Under Indictment 2001-288, the Court sentenced the defendant to the promised sentence of two years incarceration to run concurrent with his sentence under Indictment number 2001-170 of three years incarceration. At the time of sentence, the people, the defense and the court remained silent as to the mandatory post-release supervision the defendant was required to receive as part of his sentence. The Court was not provided with the minutes of the plea under indictment number 170-2001 on October 3, 2001 in order to determine whether the post-release supervision was discussed at that time.

Even though the sentencing court failed to discuss the mandatory post-release supervision for the determinate sentence, the New York State Department of Corrections (DOCS) administratively modified the defendant's sentence to include a period of three years post-release supervision.

It appears from reviewing the records attached to the People's Affirmation in Opposition filed on December 15, 2006, the defendant was admitted to Downstate Correctional Facility on December 5, 2001 and five days later, a copy of his Time Computation Sheet from DOCS was generated which indicated that the defendant's sentence included three years of post-release supervision. Additionally, in January of 2004 in conjunction with the preparation of the CRC Release Report, the defendant was notified that his sentence included a three year period of post- release supervision. On October 4, 2004, defendant was released from prison and placed under the supervision of the Division of Parole to begin serving his post-release supervision. For over one year, the defendant was released to the division of parole and was acting in accordance with [*2]the conditions of his supervision. Then, on October 13, 2005, the defendant was arrested in Clarkstown, New York for Criminal Possession of Stolen Property in the Fifth Degree.

On July 24, 2006, the Division of Parole revoked defendant's parole release and remanded the defendant to the custody of the New York State Department of Corrections. It was only after the defendant's parole was revoked that the defendant filed this pending motion to set aside his sentence pursuant to C.P.L. §§ 440.20 and 440.10 challenging the fact that he was never advised that he would be subjected to post-release supervision when he was sentenced.

With regards to the first prong of the defendant's motion pursuant to C.P.L. § 440.20(1) the defendant requests that this court not vacate his plea, but rather eliminate the post-release supervision that the Department of Corrections imposed. However, in the event that the Court will not grant a modification of his sentence, the defendant then requests that the Court set aside his sentence pursuant to C.P.L. § 440.20(1).

Criminal Procedure Law section 440.20(1) authorizes the court to set aside a sentence where the sentence "was unauthorized, illegally imposed or otherwise invalid as a matter of law." The defendant's request to eliminate the period of post release supervision is denied since such request is not permitted by state law and would result in the very issue that this Court has been asked to address, an illegal sentence.

The defendant plead guilty to the lesser crime of Attempted Robbery in the Second Degree and to the crime of Assault in the Second Degree which are both classified as D violent felonies. P.L. § 70.02(1)( c). Penal Law section 70.02(2)(b) read in conjunction with Penal Law section 70.02(3) provides that any person who stands convicted of a class D violent felony, such person must be sentenced to a determinant term of incarceration and that term must be at least two years but not greater than seven years of incarceration. The defendant is this case was sentenced to a three year term of incarceration for the Attempted Robbery in the Second Degree to run concurrent to a two year term of incarceration for the Assault in the Second Degree which is well within the parameters set forth in the statute. See Penal Law § 70.02.

Likewise, Penal Law section 70.00(6) provides that such a determinant sentence of imprisonment must include a period of post-release supervision in accordance with section 70.45. The Penal Law language is not merely a discretionary directive for the court to impose post- release supervision. Instead, it mandates that a determinate sentence of imprisonment is statutorily defined to include as part of that sentence an additional period of post-release supervision. P.L. §70.45(1); People v. Catu, 4 NY3d 242, 245 (2005); People v. Sparber, 34 AD2d 265 (1st Dept. 2006).

Although the defendant argues that this Court should eliminate the period of three years post-release supervision claiming that it was never included as part of the original sentence, the defendant is requesting that this Court now impose an unauthorized, illegal and invalid sentence. People v. Bell, 205 AD2d 694 (2nd Dept. 2003).A defendant who was not informed of the post release supervision requirement "is not entitled to modification of the sentence to eliminate the post release supervision requirement." People v. Vahelid, 305 AD2d 866 (3rd Dept. 2003); see also People v. Housman, 291 AD2d 665 (3rd Dept. 2002); People v. Rawdon, 296 AD2d 599, 600 (3rd Dept. 2002).

Accordingly, the defendant cannot be re-sentenced to eliminate the mandatory period of post-release supervision since it would violate state law. Since the mandatory period of post-release supervision cannot be eliminated, the defendant then requests that the court set aside the [*3]judgement as discussed previously pursuant to 440.20(1) or that the Court vacate the judgment pursuant to 440.10(1)(b) and (1)(h).

Now turning to the second prong of the defendant's motion, the defendant seeks to either have his sentence by set aside pursuant to C.P.L. § 440.20(1) or to vacate his judgment pursuant to C.P.L. § 440.10(1)(b) and (1)(h).

The defendant contends that his sentence should be set aside since the sentenced imposed "was unauthorized, illegally imposed or otherwise invalid as a matter of law." C.P.L. § 440.20(1). Additionally, the defendant alleges that this Court should vacate his judgment because the judgment was procured by duress, misrepresentation or fraud and because the judgment was obtained in violation of the defendant's rights under the constitution of this state and/or the United States. C.P.L. §§ 440.10(1)(b), 440.10(1)(h).

The People contend that the defendant's application should be denied since there are sufficient facts that appear on the record with respect to the issues raised by the defendant to permit adequate review. C.P.L. § 440.10(2)(b). People v. Cooks, 67 NY2d 100, 104 (1986); People v. Lindsey, 302 AD2d 128, 130 (3rd Dept. 2003). This Court finds in the interest of justice and in the appreciation of due process, the defendant's claim must be evaluated more closely. See People v. Bracey, 24 AD3d 363, 364 (2005).

A defendant must be advised of the direct consequences of a plea of guilty. People v. Ford, 86 NY2d 397, 403 (1995). "Postrelease supervision is a direct consequence of a criminal conviction." People v. Catu, 4 NY3d 242, 245 (2005). A direct consequence has been defined as a "definite, immediate and largely automatic effect on defendant's punishment." Id.; People v. Goss, 286 AD2d 180 (3rd Dept. 2001)(mandatory post-release supervision is a direct consequence of a plea).

Recently, in People v. Catu, 4 NY3d 242, 245 (2005), the Court of Appeals held that "a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction." The failure of a court to advise the defendant during the plea that the promised sentence included a term of post-release supervision renders the guilty plea involuntary since it deprived the defendant of information necessary to make an informed decision. People v. Catu, 4 NY3d at 245. "[D]ue process requires that the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." People v. Catu, 4 NY3d at 245 (citing People v. Ford, 86 NY2d 397, 402-403). If the court imposes the promised sentence without referring to post-release supervision, the defendant may move under C.P.L. section 440 to vacate a judgment of conviction and withdraw the guilty plea. People v. Van Deusen, 7 NY3d 744, 746 (2006); People v. Evans, 30 AD3d 1130, 1131 (1st Dept. 2006); People v. Lopez, 71 NY2d 662, 665 (1988)..

"Since there was no mention of postrelease supervision at either the plea or sentencing proceedings, there is no reason to believe that defendant was in a position to raise this issue by way of a motion to withdraw his plea." People v. Evans, 30 AD2d 1130, 1131 (1st Dept. 2006). The defendant preserves this issue by way of C.P.L. § 440.10 motion. People v. Lopez, 71 NY2d 662, 665 (1988).

Then, the Second Circuit in Early v. Murray, 451 F.3d 71 (2nd Cir. 2006) recently held [*4]that since sentencing is a matter exclusively for the trial judge, the imposition of a term of post-release supervision by the Department of Corrections is a violation of due process under established federal constitutional law. In the absence of post-release supervision expressly being made as part of the sentence, it cannot be deemed by statute to have been imposed at the time of the original sentence. 462 F.3d at 149-150.

In contrast, the First Department in People v. Sparber, 34 AD2d 265 (1st Dept. 2006) and again in People v. Lingle, 34 AD2d 287 (1st Dept. 2006) held that it is not necessary for the court to orally include post-release supervision as part of a determinate sentence if the written sentence commitment included the post-release supervision to satisfy federal constitutional requirements.

Similarly, the Third and Fourth departments have held that post-release supervision can be enforced by the Department of Corrections in cases where the sentencing court did not mention post release supervision pursuant to P.L. section 70.45 since post release supervision was "automatically included" in a determinate sentence as a matter of law. Matter of Deal v. Goord, 8 AD3d 769 (3rd Dept. 2004). See also People v. Crump, 302 AD2d 901 (4th Dept. 2003); People v. Bloom, 269 AD2d 838 (4th Dept. 2000).

When a conflict arises between the case law of New York State and federal law, the Court must adhere to the rulings of the state law and may look to federal law as persuasive authority until the specific issue is addressed by the Court of Appeals or the Second Department. People v. Kin Kan, 78 NY2d 54, 60 (1991); People v. Joseph, 85 AD2d 546 (1st Dept. 1981).

This Court is faced with a number of unresolved legal issues that arise when a court fails to orally impose a term of post-release supervision and the written commitment papers do not reflect a period of post-release supervision. A review of the current and relevant case law leaves this Court without guidance on how to proceed to remedy this error without prejudice to the defendant. This Court recognizes the critical flaw in requiring the defendant to serve the remainder of the post-release supervision when he was never informed of such when he entered his plea and when he was sentenced. However, the Court also recognizes the enormous burden this bestows on the People, and for that matter, on the administration of courts within New York State, if it allows each defendant that falls within this category the opportunity to either withdrawal the plea or to re-sentence.

Howver, this Court rejects the notation that due process is satisfied by simply amending the defendant's written sentence commitment to include that period of post-release supervision and signing the judge's signature on the document because the amendment does not operate to change the defendant's sentence since state law has deemed the period of post-release to have been included in the original sentence. See People v. Giles, 12/12/2006 N.Y.L.J. 24, (col. 3-4), 25, (col. 1-2).

Guided by the most recent cases decided by the Court of Appeals in conjunction with the Second Circuit, this Court finds that the failure of the sentencing court to advise the defendant during the plea and/or during the sentencing of the mandatory post-release supervision as a consequence of his guilty plea to a determinant sentence renders the guilty plea involuntary and in violation of due process since it deprived the defendant of information necessary to make an informed decision. People v. Catu, 4 NY3d 242 (2005).Therefore, the defendant's decision to plead guilty cannot be said to have been knowing, voluntary and intelligent and he is entitled to withdraw his guilty plea upon making such a motion. People v. Catu, 4 NY3d 242 (2205); People v. Deusen, 7 NY3d 744 (2006). [*5]

Upon review of the foregoing and in the interest of justice, the defendant's motion is granted to the extent that a hearing will be held to determine whether the defendant is aware of the exposure ^[FN1] that he could be facing should this Court grant the defendant's application to allow the judgment to be vacated and a new trial order considering that the defendant has already served the incarcerated portion of his sentence as well as more than one of three years post-release supervision, or, in the alternative, to determine whether the defendant requests that this Court re-sentence the defendant on consent to include the mandatory post-release supervision of three years that the prior sentencing court neglected to inform him.

This Decision shall constitute the Order of this Court.

E N T E R

Dated:New City, New York

January 16, 2007

____________________________________

Honorable Catherine M. Bartlett

Court of Claims Justice

Acting Supreme Court, Rockland County