People v Jacobson

[*1] People v Jacobson 2006 NY Slip Op 51867(U) [13 Misc 3d 1217(A)] Decided on October 3, 2006 County Court, New York County Doran, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 3, 2006
County Court, New York County

THE PEOPLE OF THE STATE OF NEW YORK

against

Christopher Jacobson, Defendant.



99-01-32

Craig J. Doran, J.

The defendant herein was convicted after a plea of guilty to Robbery in the Second Degree and Assault in the Second Degree. The defendant was sentenced on August 4, 1999, to a determinate term of 3½ years imprisonment for the Robbery count and a concurrent determinate term of 2½ years imprisonment for the Assault count.It appears to be undisputed that at the time of the entry of the defendant's guilty plea, the Court did not advise the defendant that he would be subject to a period of postrelease supervision as part of his sentence. It is also not disputed that the Court did not sentence the defendant to a period of postrelease supervision. Finally, it is not disputed that the defendant perfected an appeal of his conviction, which resulted in an affirmance (see, People v. Jacobson, 278 AD2d 951).

In the instant motion, accompanied by a sworn affidavit dated August 29, 2006, the defendant moves to vacate his conviction pursuant to Criminal Procedure Law Section 440.10(1)(h). The Court is in receipt of an Answering Affidavit from Brian D. Dennis, First Assistant District Attorney for Ontario County, opposing the relief sought by the defendant herein.

This Court is cognizant of the recent Court of Appeals decision in People v. Catu, 4 NY3d 242, in which the Court held that a period of postrelease supervision is a direct consequence of a guilty plea, and, as such, a defendant must be advised of that consequence by the court. The Court of Appeals held further that the failure of a court to advise a defendant who enters a guilty plea of postrelease supervision requires a reversal of the conviction.

However, in the instant case, the defendant previously appealed his conviction and it resulted in an affirmance (see, People v. Jacobson, supra). Since the defendant could have raised this issue in his direct appeal, he is precluded from raising the issue in the context of a CPL Article 440 motion (see, CPL §440.10[2]).

Consequently, this Court hereby denies the motion to vacate the judgment on the ground that "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 raise such ground or issue upon an appeal actually perfected by him" (CPL §440.10[2]); [*2](see also, People v. Pignataro, 20 AD3d 892).

Indeed, the Fourth Department has recently held that on appeal of a defendant's conviction, the failure of a court to advise of postrelease supervision requires reversal of the conviction (see, People v. Simpson, 30 AD3d 1112). The Appellate Division in Simpson went on to hold, "To the extent that prior decisions of this Court would require preservation of defendant's contention, those decisions are no longer to be followed" (see, People v. Simpson, supra).

Based upon the foregoing, this Court determines that the motion shall be denied without the necessity of a hearing, pursuant to Criminal Procedure Law §440.10(2).

This shall constitute the Decision and Order of this Court.

DATED: October, 2006

at Canandaigua, New York

Craig J. Doran

County Court Judge