People v. JonesPeople v. Jones
■ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v NASJUAN JONES, Appellant. [45 NYS3d 261]—
Egan Jr., J. Appeals (1) from a judgment of the Supreme Court (Milano, J.), rendered November 12, 2013 in Schenectady County, convicting defendant upon his plea of guilty of the crimes of assault in the first degree and assault in the second degree, and (2) from a judgment of said court, rendered January 3, 2014 in Schenectady County, which resentenced defendant on his conviction of assault in the first degree.
In May 2013, defendant was charged in a 13-count indictment with various crimes—the most serious of which was attempted murder in the second degree. Following his arraignment, defendant was remanded to the Schenectady County Correctional Facility to await trial. While confined to that facility, defendant allegedly caused physical injury to a peace officer, as a result of which he was indicted and charged in August 2013 with two counts of assault in the second degree. Thereafter,
Thereafter, in November 2013, defendant appeared for sentencing, at which time some discussion was had as to whether defendant would be subject to two “concurrent” terms of postrelease supervision or a single term of postrelease supervision as to “the more serious level offense in this case.” Supreme Court, deeming this to “be a distinction without a difference,” sentenced defendant in accordance with the terms of the plea agreement and imposed a single 3 1/2-year term of postrelease supervision in connection with defendant‘s conviction of assault in the second degree. Both Supreme Court‘s commitment order and the resulting uniform sentence and commitment orders reflect that no period of postrelease supervision was imposed with respect to defendant‘s conviction of assault in the first degree.
The Department of Corrections and Community Supervision subsequently advised Supreme Court of its failure to impose a period of postrelease supervision upon defendant‘s first degree assault conviction, as the result of which defendant returned to Supreme Court in January 2014 for resentencing. At that time, Supreme Court advised defendant of its intention to impose a 3 1/2-year term of postrelease supervision in connection with defendant‘s conviction of assault in the first degree, which would run concurrently, i.e., merge, with the period of postrelease supervision already imposed upon the assault in the second degree conviction. The People reiterated that the contemplated resentencing would in no way enhance or extend the period of postrelease supervision to which defendant already was subject and, when questioned by Supreme Court as to whether such resentencing would “in any way change any of [his] answers to the plea colloquy,” defendant replied, “No, your honor” and indicated that he wished to proceed with resentencing. To that end, Supreme Court resentenced defendant to 15 years in
To the extent that defendant‘s brief may be read as challenging the legality and/or voluntariness of his guilty plea, although this issue survives defendant‘s uncontested waiver of the right to appeal, it is unpreserved for our review in the absence of an appropriate postallocution motion (see People v Williams, 27 NY3d 212, 221-222 [2016]; People v Terenzi, 57 AD3d 1228, 1229 [2008], lv denied 12 NY3d 822 [2009]). Notably, “defendant was made aware that he would be subject to a period of postrelease supervision at the outset of the resentencing proceeding, and nonetheless failed to move to withdraw his plea prior to the imposition of the resentence” (People v Ullah, 130 AD3d 759, 760 [2015], lv denied 26 NY3d 1043 [2015]). Moreover, the record reflects that, once defendant was confronted with Supreme Court‘s initial failure to impose a period of postrelease supervision upon the assault in the first degree conviction, Supreme Court expressly asked defendant whether he was willing “to stand by that conviction and that plea” and to proceed with resentencing, to which defendant replied, “Yes.” Accordingly, we decline to exercise our interest of justice jurisdiction to take corrective action on this point.
Nor are we persuaded that defendant is entitled to vacatur of his plea under People v Catu (4 NY3d 242 [2005]) and its progeny (see e.g. People v Turner, 24 NY3d 254 [2014]; People v Louree, 8 NY3d 541 [2007]), as this simply is not a case where the sentencing court utterly failed to apprise a criminal defendant that he or she would be subject to a period of postrelease supervision and/or neglected to specify the promised or potential duration thereof (compare People v Meyers, 73 AD3d 1231, 1231 [2010]). To the contrary, a review of defendant‘s plea colloquy makes clear that he was aware that he would be subject to a period of postrelease supervision and, further, that he was specifically advised as to the range of postrelease supervision (2 1/2 to 5 years) that could be imposed (see People v Garcia, 89 AD3d 1325, 1326 [2011], lv denied 18 NY3d 924 [2012])—facts that are in no way altered by Supreme Court‘s and counsels’ mistaken belief that the court could impose a single term of postrelease supervision instead of two separate but concurrent terms of postrelease supervision upon the assault
That said, there indeed are errors as to the postrelease supervision components of the respective sentences—both with respect to the term of postrelease supervision actually imposed upon defendant‘s conviction of assault in the second degree and as to the term of postrelease supervision reflected on the uniform sentence and commitment orders relative to defendant‘s conviction of assault in the first degree. Specifically, as noted previously, the maximum period of postrelease supervision that may be imposed upon defendant‘s conviction of assault in the second degree is three years, not 3 1/2 years (see
Peters, P.J., McCarthy, Lynch and Devine, JJ., concur.
Ordered that the judgment entered November 12, 2013 is modified, on the law, by vacating the period of postrelease supervision imposed upon defendant‘s conviction of assault in the second degree; matter remitted to the Supreme Court for further proceedings not inconsistent with this Court‘s decision; and, as so modified, affirmed. Ordered that the judgment entered January 3, 2014 is affirmed, and matter remitted for the entry of a second amended uniform sentence and commitment form.