People v Singh

People v Singh 2011 NY Slip Op 09682 Decided on December 27, 2011 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 27, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
DANIEL D. ANGIOLILLO
THOMAS A. DICKERSON
L. PRISCILLA HALL, JJ.
2008-06085
(Ind. No. 1134/04)

[*1]The People of the State of New York, respondent,

v

Devendra Singh, appellant.




Lynn W. L. Fahey, New York, N.Y. (Barry Stendig of counsel),
for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y.
(John M. Castellano and Daniel
Bresnahan of counsel), for
respondent.


DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Wong, J., at plea; Mullings, J., at sentence), rendered June 18, 2008, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is reversed, on the law, the plea is vacated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings in accordance herewith.

As the People correctly concede, the plea minutes reveal that the defendant was not advised, prior to entering his plea of guilty, that his determinate term of imprisonment would be followed by a mandatory period of postrelease supervision. Therefore, the judgment of conviction must be reversed and the defendant's plea of guilty must be vacated (see People v Cornell, 16 NY3d 801, 802; People v Hill, 9 NY3d 189, 191, cert denied 553 US 1048; People v Louree, 8 NY3d 541, 544-545; People v Catu, 4 NY3d 242, 245; People v Peck, 78 AD3d 1199, 1200; People v Lindsay, 72 AD3d 845, 846; People v Wilcox, 70 AD3d 1059, 1059).

While the People request that the matter be remitted pursuant to Penal Law § 70.85 so that the defendant may be resentenced, which resentence would not include a period of postrelease supervision, the plain language of that statute demonstrates that it is not applicable where, as here, the sentencing court explicitly imposed a period of postrelease supervision at sentencing (see People v Puntervold, 60 AD3d 1090, 1090-1091; see also People v Rucker, 67 AD3d 1126, 1127-1128; People v Montanez, 55 AD3d 372, 372-373). We also decline the People's request that we invoke Judiciary Law § 2-b(3), in effect, to reach the same result that Penal Law § 70.85 would produce, if applicable. Judiciary Law § 2-b(3) provides that "[a] court of record has power . . . to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it." By enacting Judiciary Law § 2-b(3), the Legislature has afforded the courts the authority to "fashion necessary procedures consistent with constitutional, statutory, and decisional law" (People v Wrotten, 14 NY3d 33, 37, cert deniedUS, 130 S Ct 2520 [2010]). Implementing Judiciary Law § 2-b(3) in the manner advocated by the People would be contrary to, rather than consistent with, the existing statutory and decisional law on this issue.
DILLON, J.P., ANGIOLILLO, DICKERSON and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court