People v. Hill , 9 N.Y.3d 189 ( 2007 )

OPINION OF THE COURT

Chief Judge Kaye.

In April 2002, defendant pleaded guilty to rape in the first degree in full satisfaction of the indictment. The court sentenced him to a determinate 15-year imprisonment term. No mention was made, either during the plea or during the sentencing that followed one month later, of an additional five-year term of post-release supervision, which defendant allegedly learned of from a fellow inmate. Defendant now claims that he would not have agreed to the plea had he known of the postrelease supervision, and he seeks vacatur of the plea.

As has been well established in our law, when a criminal defendant waives the fundamental right to trial by jury and pleads guilty, due process requires that the waiver be knowing, voluntary and intelligent (see NY Const, art I, § 6; People v Ford, 86 NY2d 397, 403 [1995]; see also McCarthy v United States, 394 US 459, 466 [1969] [“if a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void”]). Prior to accepting a guilty plea, therefore, a defendant must be informed of the direct consequences of the plea. When a court fails to so advise the defendant, the plea cannot be deemed knowing, voluntary and intelligent, and defendant may withdraw the plea and be returned to his or her uncertain status before the negotiated bargain (see People v Harris, 61 NY2d 9, 17 [1983]; People v Gina M. M., 40 NY2d 595 [1976]).

Among the direct consequences of pleading guilty is the period of postrelease supervision that follows a determinate sentence of incarceration. As we explained in People v Catu (4 NY3d 242, 245 [2005]), “[b]ecause a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction.” In that the constitutional defect lies in the plea itself and not in the resulting sentence, vacatur of the plea is the remedy for a Catu error since it returns a defendant to his or her status before the constitutional infirmity occurred.¹

In People v Van Deusen (7 NY3d 744 [2006]), defendant pleaded guilty, and the trial court promised a determinate sentencing range of between 5 to 15 years of incarceration with no mention of the postrelease supervision term. On the eve of sentencing, defendant moved to withdraw her guilty plea based on the trial court’s failure to inform her of postrelease supervision. The court denied her motion and sentenced defendant to a determinate term of eight years of imprisonment with five years of postrelease supervision. This Court rejected the Appellate Division’s rationale that vacatur of a guilty plea was not required when the sentencing court gave the defendant the benefit of her plea bargain, exposing her to a shorter total period of punishment. We held that:

“At the time defendant pleaded guilty, she did not possess all the information necessary for an informed choice among different possible courses of action because she was not told that she would be subject to mandatory postrelease supervision as a consequence of her guilty plea. Accordingly, defendant’s decision to plead guilty cannot be said to have been knowing, voluntary and intelligent” (id. at 746).

In effect, the Court rejected harmless error analysis by requiring vacatur of defendant’s guilty plea (see also People v Goss, 286 AD2d 180, 184 [3d Dept 2001] [“as defendant never knowingly agreed to the five-year postrelease period of supervision to follow his 12-year determinate sentence, we reject the People’s argument that the error in not disclosing this portion of the sentence to defendant is harmless”]).

Similarly, in People v Louree (8 NY3d 541, 545 [2007]), we held it “irrelevant that the prison sentence added to postrelease supervision is within the range of prison time promised at the allocution.” Harmless error doctrine is inapposite when analyzing remedies for Catu errors (see People v Coles, 62 NY2d 908, 910 [1984] [“harmless error rules were designed to review trial verdicts and are difficult to apply to guilty pleas”]).

Here, at the time of his plea, defendant was not informed that a period of postrelease supervision would follow his term of incarceration. Thus, defendant did not possess the requisite information knowingly to waive his rights and must be permitted to withdraw his plea. That the trial court ultimately resentenced defendant to a total period of incarceration (I2V2 years) plus postrelease supervision (2V2 years) equal to his originally promised sentence of incarceration does not change this conclusion.²

The dissent incorrectly believes that Catu and Van Deusen turned on the question whether “the defendant got the full benefit of her plea bargain” (dissenting op at 194); thus, the dissent attempts to undo the prejudice of defendant’s involuntary guilty plea. Rather, Catu, Van Deusen and Louree made clear that the courts violated the defendant’s due process rights—not the defendant’s sentencing expectations. Therefore, we vacated the defendants’ involuntary guilty pleas to remedy the constitutional violations. Here, we are constrained to give the same relief, exposing defendant to the full penalty of at least a 25-year prison term.

Accordingly, the order of the Appellate Division should be reversed, defendant’s plea vacated and the case remitted to Supreme Court for further proceedings on the indictment.

1 . People v Selikoff (35 NY2d 227 [1974]) does not warrant a different result (dissenting op at 194). There, the court, at sentencing, refused to fulfill the promised sentence because the court had learned, between the plea and the sentencing date, that defendant was the principal and not merely a pawn in a fraudulent scheme. Defendant never challenged the voluntariness of his plea and refused to withdraw it. When, at the time of a plea, a defendant possesses the requisite information to make an informed choice, the defendant’s guilty plea is voluntary, so either the plea’s vacatur or specific performance of the promise is appropriate. A Catu error, by contrast, affects the voluntariness of defendant’s guilty plea, and thus makes vacatur the appropriate remedy.

2 . Defendant urges that, despite the mathematics, the sentence—because it adds postrelease supervision to incarceration—is not in any event equivalent to the promised sentence. Moreover, he could, in fact, face more incarceration under the new sentence than under the agreed-to sentence. If he violated the postrelease supervision conditions within six months of the postrelease supervision term’s end, he could receive an additional six months’ incarceration beyond the term of postrelease supervision (see Penal Law § 70.45 [5]).