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Penal Law §70.85 And Constitutionality Of Leaving Out Post Release Supervision: What Is Knowing And Voluntary In A Guilty Plea

People v Pignataro

New York Court of Appeals

Decided December 12, 2013

2013 NY Slip Op 08286

Issue: whether Penal Law § 70.85 is unconstitutional because it deprives a defendant the ability to vacate his guilty plea when a sentencing court fails to declare a period of PRS (post release supervision) at the sentencing hearing.

Holding: No § 70.85 is not unconstitutional and was a response to the New York Court of Appeals holding in People v. Catu, 4 N.Y.3d 242 where it was held that the trial court has the constitutional duty to inform a defendant of a mandatory term of PRS before accepting a guilty plea and where defendant is not informed the plea is not voluntary and intelligent choice and defendant has the right to vacate the plea.  70.85 allows, on the People’s application, the trial court to re-impose the sentence without a period of PRS and therefore makes the plea knowing and voluntary.

Facts: In November 2000, Pignataro pleaded guilty to attempted assault in the first degree, in full satisfaction of a multi-count indictment alleging he poisoned his wife. During his plea colloquy, the trial court told defendant that he would receive a 5 to 15 year determinate sentence of incarceration. However, the court did not inform him that Penal Law § 70.45 required a period of post release supervision (“PRS”). The court orally sentenced defendant to the maximum 15-year sentence, without pronouncing the mandatory term of PRS.

Following Catu, we have repeatedly reaffirmed that a defendant could vacate a plea when the trial court failed to mention a mandatory term of PRS during the plea allocution.

In 2008, the Legislature enacted Penal Law § 70.85 to provide trial courts with another means to address Catu errors and “avoid the need for pleas to be vacated”.  The statute authorizes a trial court to “re-impose,” with the People’s consent, “the originally imposed determinate sentence of imprisonment without any term of [PRS]”. Section 70.85 thus makes an exception to Penal Law § 70.45 by allowing a determinate sentence without a term of PRS to stand as a legal sentence.

 In response, defendant challenged the proceeding as unconstitutional because it did not permit him to withdraw his involuntary plea, claiming he had an undeniable right to such relief under Catu and its progeny.  Supreme Court resentenced him under section 70.85 to a determinate term of 15 years without PRS.

 His appeal squarely presents this Court with the question of the constitutionality of section 70.85. The State Constitution requires a trial court to ensure that a defendant has a “full understanding of what the plea connotes and its consequences” (People v Ford, 86 NY2d 397). A guilty plea made without notification from the court about the direct consequence of a PRS term violates the Constitution because it could not have been “a voluntary and intelligent choice among the alternative courses of action” (Catu).

Prior to the enactment of section 70.85, trial courts lacked a mechanism to impose a determinate sentence without a term of PRS.  Mindful of the constitutional rights at issue in cases involving a Catu error, we find that section 70.85 is a constitutionally permissible legislative remedy for the defectiveness of the plea. Defendant’s plea was knowing and voluntary because the Legislature has changed the sentencing laws governing pleas vulnerable to a Catu challenge. Section 70.85 ensures that defedant, who is no longer subject to PRS, pleaded guilty with the requisite awareness of the direct consequences of his plea.