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People v. Hill

139 A.D.3d 468 Court N.Y. App. Div. Decision date 2016-05-10 English

Judges Concur — Friedman, J.P., Acosta, Moskowitz, Kapnick and Gesmer, JJ.

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p. 468
The People of the State of New York, Respondent, v Desean Hill, Appellant.
[33 NYS3d 159]

Judgment, Supreme Court, Bronx County (Troy K. Webber, J.), rendered January 24, 2014, as amended August 5, 2014,

p. 469
convicting defendant, upon his plea of guilty, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of seven years, with five years’ postrelease supervision, and judgments, same court (Steven L. Barrett, J.), rendered April 9, 2014, convicting him, upon his pleas of guilty, of burglary in the second degree, promoting prostitution in the second degree, and assault in the third degree, and sentencing him, as a second felony offender, to an aggregate term of six years, with five years’ postrelease supervision, consecutive to the sentence on the robbery conviction, unanimously affirmed.

On separate dates, defendant pleaded guilty to two felonies that carried terms of postrelease supervision. Although the prison terms for these felonies run consecutively, the post-release supervision (PRS) terms merge into a single term of five years by operation of law (see Penal Law § 70.45 [5] [c]). Therefore, since it is undisputed that, as to one of these pleas, defendant was properly warned that his sentence would include a five-year PRS term, defendant was not prejudiced by the lack of a warning, at the time of the first plea, that such a term would be part of his sentence in the event that he violated his plea agreement. Thus, defendant was never subject to PRS solely as a consequence of the plea that lacked the warning required by People v Catu ( 4 NY3d 242 [2005]), and there is now no reason to vacate the plea (cf. People v Ferrell, 76 AD3d 938 [1st Dept 2010], lv denied 15 NY3d 952 [2010] [defendant pleading guilty to murder and other crimes not prejudiced by lack of information about additional sentences that merged into life term]).

Although we find that defendant did not make a valid waiver of his right to appeal, we perceive no basis for any reduction of sentence.

Concur — Friedman, J.P., Acosta, Moskowitz, Kapnick and Gesmer, JJ.

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