SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

465 

KA 14-01505 

PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

ERIC CHANT, DEFENDANT-APPELLANT. 

 

ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),

FOR DEFENDANT-APPELLANT.

DAVID W. FOLEY, DISTRICT ATTORNEY, MAYVILLE (JOSEPH M. CALIMERI OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Chautauqua County Court (John T.

Ward, J.), rendered February 11, 2013. The judgment convicted

defendant, upon his plea of guilty, of rape in the first degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon his plea of guilty of rape in the first degree (Penal Law 

§ 130.35 [4]). Defendant contends that reversal of the judgment and

vacatur of the plea are required because County Court failed to advise

him, during the plea allocution, of the specific period of postrelease

supervision that would be imposed at sentencing, and that preservation

of his contention is not required. We conclude on this record that

defendant was required to preserve his contention inasmuch as he had a

reasonable opportunity to challenge the validity of his guilty plea on

the same ground now advanced on appeal, and that defendant failed to

preserve his contention for our review because he did not move to

withdraw the plea or otherwise object to the imposition of postrelease

supervision (see People v Williams, ___ NY3d ___, ___ [Apr. 5, 2016];

People v Crowder, 24 NY3d 1134, 1136-1137; cf. People v Louree, 8 NY3d

541, 545-546).

Prior to commencement of the scheduled trial, the parties

indicated that the People had offered a plea bargain in which

defendant would plead guilty to rape in the first degree, a class B

violent felony sex offense (see Penal Law §§ 70.02 [1] [a]; 70.80 [1]

[b]; 130.35), in full satisfaction of the indictment, and that

defendant would receive the maximum sentence for that crime. Although

the prosecutor correctly placed on the record that the maximum term of

imprisonment was 25 years (§ 70.02 [3] [a]), he misstated the

applicable period of postrelease supervision as 25 years instead of
-2- 465 

KA 14-01505 

the legal maximum period of 20 years (§ 70.45 [2-a] [f]). Without

acknowledging that misstatement, defense counsel indicated that the

proposed resolution had been discussed in detail with defendant,

including all consequences of the proposed plea bargain, and that

defendant fully understood such consequences and was prepared to plead

guilty. Defendant stated that he understood everything that had been

stated, and the court proceeded with a plea allocution in which it did

not mention postrelease supervision. Immediately following the

allocution, the court set a sentencing date and, in discussing with

defense counsel its willingness to adjourn that date if necessary to

permit additional time for preparation, the court confirmed that the

plea agreement involved a sentence of 25 years of imprisonment with 20

years of postrelease supervision. Defense counsel and the prosecutor

both agreed with the court’s recitation of the agreed-upon sentence,

and neither defendant nor defense counsel objected to the period of

postrelease supervision. At an appearance two months later, the

prosecutor agreed with the court’s statement that there was an agreedupon sentence in place, but nevertheless did not object to defense

counsel’s request for an adjournment to further prepare for

sentencing. At the outset of the sentencing proceeding more than two

months after the appearance, the prosecutor stated that the agreement

involved a sentence of 25 years of imprisonment, but misstated the

period of postrelease supervision as two years, which was below the

legal minimum period of five years (§ 70.45 [2-a] [f]). Defense

counsel did not address that misstatement, but nonetheless indicated

that he had discussed with defendant all of the collateral

consequences of the plea as well as the sentence. The court

thereafter imposed the agreed-upon sentence of 25 years of

imprisonment with 20 years of postrelease supervision.

Where, as here, “a defect in a plea allocution is clear on the

face of the record and implicates due process, the defendant

nonetheless must preserve his or her claim that the defect made the

plea involuntary unless the defendant has no practical ability to do

so” (Williams, ___ NY3d at ___). Although the prosecutor initially

misstated the period of postrelease supervision prior to the plea

allocution and the court failed to mention postrelease supervision

during the allocution, defendant was aware that the sentence included

a postrelease supervision component at the time of the allocution, the

court immediately thereafter confirmed the correct agreed-upon

sentence, and neither defendant nor defense counsel objected to the

period of postrelease supervision or otherwise indicated that there

was any misunderstanding with regard to its length. In addition,

while postrelease supervision was not specifically mentioned at the

subsequent appearance, there was no objection at that time to the plea

or any component of the agreed-upon sentence. The fact that the

prosecutor’s articulation of the postrelease supervision period at the

outset of the sentencing proceeding did not conform with the parties’

previously-expressed understanding of the agreed-upon period provided

the defense with another opportunity to preserve defendant’s current

challenge to his plea and seek clarification of the matter (see id. at

___). We thus conclude that, “[b]ecause defendant had ample

opportunity to raise an objection to the [postrelease supervision]
-3- 465 

KA 14-01505 

component prior to and during these proceedings, defendant was

required to preserve his claim” (Crowder, 24 NY3d at 1136-1137; see

People v Murray, 15 NY3d 725, 726-727). “By failing to seize upon

these opportunities to object or seek additional pertinent

information, defense counsel failed to preserve defendant’s claim for

appellate review” (Williams, ___ NY3d at ___; see Murray, 15 NY3d at

727). We decline to exercise our power to review defendant’s

contention as a matter of discretion in the interest of justice (see

CPL 470.15 [3] [c]).

We further conclude that defendant, by pleading guilty, forfeited

any challenge to the alleged Brady violation (see People v Chinn, 104

AD3d 1167, 1168, lv denied 21 NY3d 1014). Finally, defendant’s

sentence is not unduly harsh or severe.

Entered: June 10, 2016 Frances E. Cafarell

Clerk of the Court