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People v. Fox

139 A.D.3d 871 Court N.Y. App. Div. Decision date 2016-05-11 English

Judges Leventhal, J.P., Hall, Hinds-Radix and LaSalle, JJ., concur.

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p. 871
The People of the State of New York, Respondent, v Michael Fox, Appellant.
[29 NYS3d 812]

Appeals by the defendant from two judgments of the County Court, Nassau County (Gulotta, Jr., J.), both rendered April 24, 2012, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree under Superior Court information No. 770/09 (Massell, J., at plea), and robbery in the third degree (three counts) under indictment No. 1963/10 (Gulotta, Jr., J., at plea), upon his pleas of guilty, and imposing sentences.

Ordered that the judgment rendered April 24, 2012, under Superior Court information No. 770/09 is reversed, on the law, the plea is vacated, and the matter is remitted to the County Court, Nassau County, for further proceedings in accordance herewith; and it is further,

Ordered that the judgment rendered April 24, 2012, under indictment No. 1963/10 is affirmed.

As the People correctly concede, the County Court’s failure to advise the defendant at the time of his plea that his sentence for criminal sale of a controlled substance in the third degree

p. 872
would include a period of postrelease supervision prevented his plea from being knowing, voluntary, and intelligent (see People v Catu, 4 NY3d 242 , 245 [2005]; see also People v Cornell, 16 NY3d 801 , 802 [2011]; People v Hill, 9 NY3d 189 , 191 [2007]). Accordingly, the judgment rendered under Superior Court information No. 770/09 must be reversed, the plea vacated, and the matter remitted to the County Court, Nassau County, for further proceedings (see People v Murrell, 135 AD3d 882 [2016]; People v Wolfolk, 134 AD3d 1059 [2015]; People v Fuertes, 105 AD3d 974 [2013]; People v Wilcox, 70 AD3d 1059 [2010]).

The defendant’s remaining contentions regarding the robbery convictions under indictment No. 1963/10 are without merit, and those regarding the controlled substance convictions under Superior Court information No. 770/09 need not be reached in light of our determination.

Leventhal, J.P., Hall, Hinds-Radix and LaSalle, JJ., concur.

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