SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

98 

KA 09-02480 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

CHARLES M. LEISTMAN, DEFENDANT-APPELLANT. 

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Monroe County Court (John J.

Connell, J.), rendered September 25, 2009. The judgment convicted

defendant, upon his plea of guilty, of course of sexual conduct

against a child in the first degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously reversed on the law, the plea is vacated and the matter is

remitted to Monroe County Court for further proceedings on the

indictment. 

Memorandum: On appeal from a judgment convicting him, upon his

plea of guilty, of course of sexual conduct against a child in the

first degree (Penal Law § 130.75 [1] [a]), defendant contends that the

plea was involuntary because County Court failed to inform him that a

period of postrelease supervision (PRS) would be imposed. Although

defendant failed to move to withdraw the plea or to vacate the

judgment of conviction, it is well settled that, “ ‘where a trial

judge does not fulfill the obligation to advise a defendant of [PRS]

during the plea allocution, the defendant may challenge the plea as

not knowing, voluntary and intelligent on direct appeal,

notwithstanding the absence of a postallocution motion’ ” (People v

Cornell, 16 NY3d 801, 802; see People v Boyd, 12 NY3d 390, 393). It

is also well settled that the court “has the constitutional duty to

advise a defendant of the direct consequences of a guilty plea,

including any period of [PRS] that will be imposed as part of the

sentence,” and “ ‘[t]he failure of a court to advise of [PRS] requires

reversal of the conviction’ ” (Cornell, 16 NY3d at 802, quoting People

v Catu, 4 NY3d 242, 245). Here, as the People correctly concede, the

record does not establish that the court advised defendant when he

pleaded guilty that the sentence would include a period of PRS. To

the contrary, the record establishes that the People indicated that

they would request a sentence of at least 10 years in prison, and the
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KA 09-02480 

court made no sentence promise other than to indicate that defendant

“will be sentenced to state prison.” Because the court “failed to

advise defendant prior to the entry of the plea that his sentence

would include a period of postrelease supervision, . . . his plea was

not knowingly, voluntarily and intelligently entered” (People v Rajab,

79 AD3d 1718, 1719; see People v Hill, 9 NY3d 189, 191-192, cert

denied 553 US 1048; Catu, 4 NY3d at 245). We therefore reverse the

judgment, vacate the plea, and remit the matter to County Court for

further proceedings on the indictment.

 Defendant’s remaining contentions are moot in light of our

determination.

Entered: February 7, 2014 Frances E. Cafarell

Clerk of the Court