By notice of motion dated May 4, 2006, defendant moves pro se, for an order vacating judgment pursuant to CPL §440.10(1)(h). The matter was returnable to Part 52 of this court on June 22, 2006. At that time, an Assistant District Attorney of the Kings County District Attorney's office (ADA) requested leave to submit written opposition by July 20, 2006. On July 20, 2006, the ADA requested additional time, until October 3, 2006, to do so. By affirmation in opposition dated September 26, 2006, the People oppose the motion.

Defendant was charged under Kings County indictment number 3175/00 with forty-five various counts of crimes pertaining to three criminal transactions. The first five counts of the indictment pertain to a robbery and related charges which occurred on or about March 12 or 13, 2000. The sixth, through and including, the tenth count pertain to an assault and related charges which occurred on March 15, 2000. The eleventh, through and including, the forty-fifth count pertain to sex crimes and other related charges which occurred on March 26, 2000.

On December 4, 2000, the defendant pleaded guilty to Robbery in the second degree, Assault in the second degree, and Sodomy in the first degree in full satisfaction of the indictment. The plea represented a top count charge for each of the three criminal transactions. In exchange for his plea of guilty, the court promised the defendant a sentence of three concurrent determinate terms of seven years imprisonment. Defendant waived his right to appeal.

On December 15, 2000, as promised, the Court sentenced the defendant to seven years in prison on each of the three convictions to run concurrently with each other. In addition, for violating probation on indictment number 3745/99, the court sentenced defendant to a prison term of a minimum of one and one-third to a maximum of four years in prison to run concurrently with the three concurrent seven year sentences.

Defendant's affidavit in support of the instant motion alleges that his plea of guilty was unknowing, unintelligent, and involuntary because his sentence included a period of post release supervision which was not part of his plea arrangement. Defendant requests to be allowed to re-plea to Attempted Sodomy in the first degree and to be re-sentenced to a determinate term of four years imprisonment, plus three years of post release supervision. In the alternative, [*2]defendant asks to withdraw his guilty plea and exercise his rights to proceed with further hearings.

Assistant District Attorney (ADA), Joyce Slevin, submitted an affirmation in opposition to the motion and a memorandum of law. Attached to ADA Slevin's affirmation in opposition was a copy of certified transcripts of defendant's plea and sentence. The transcripts reveal that the court did not mention anything regarding post release supervision either at the time of the defendant's plea or sentence. ADA Slevin asserts that the defendants's claim is procedurally barred from review because sufficient facts appear on the record to have provided for direct appellate review of the claim.

Mr. Gregory Mackey moves pursuant to CPL §440.10[1][h] to vacate the instant judgment under indictment number 3175/00.

CPL§ 440.10[1][h] provides that at any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that: (h) The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.

CPL § 440.10[2][c] provides that the court must deny a motion to vacate a judgment when: Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him.

Pursuant to CPL §440.10[2][c], a motion to vacate a judgment of conviction must be denied when sufficient facts appear on the record to have permitted review of the defendant's claim on direct appeal, but the defendant unjustifiably failed to take an appeal (see People v Cooks, 67 NY2d 100 [1986]; see also People v Williams, 5 AD3d 407 [2nd Dept 2004]). Although defendant waived his right to appeal when he pleaded guilty, defendant could have appealed his plea on the grounds that it was not knowing, intelligent, or voluntary. A challenge to the voluntariness of a pleas survives a waiver of the right to appeal (People v Seaberg, 74 NY2d 1 [1989]; see also People v. Melio, 304 AD2d 247 [2nd Dept. 2003].

Sufficient facts appear on the record to indicate that defendant was not informed of post release supervision at the time of his plea and sentence. Therefore, because the defendant could have raised his claim on direct appeal but unjustifiably failed to do so, the claim is procedurally barred from review under CPL §440.10[2][c]. Defendant's motion to vacate judgment is therefore denied.

The foregoing constitutes the decision and order of the court.

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J.S.C.