Opinion
2016–12436 S.C.I. No. 1479/15
05-28-2019
The PEOPLE, etc., Respondent, v. Gaven BENSON, Appellant.
Laurette D. Mulry, Riverhead, N.Y. (Edward E. Smith of counsel), for appellant. Timothy D. Sini, District Attorney, Riverhead, N.Y. (Nicole L. Gallo of counsel), for respondent.
Laurette D. Mulry, Riverhead, N.Y. (Edward E. Smith of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, N.Y. (Nicole L. Gallo of counsel), for respondent.
RUTH C. BALKIN, J.P. CHERYL E. CHAMBERS, JOHN M. LEVENTHAL, HECTOR D. LASALLE, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Suffolk County (Fernando Camacho, J.), rendered October 28, 2016, convicting him of attempted robbery in the second degree, upon his plea of guilty, and sentencing him to a determinate term of imprisonment of five years and a period of postrelease supervision of five years.
ORDERED that the judgment is modified, on the law, by vacating the period of postrelease supervision; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Suffolk County, for the imposition of an appropriate period of postrelease supervision in accordance herewith.
The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 339–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez , 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Lyons , 161 A.D.3d 1196, 74 N.Y.S.3d 500 ; People v. Miranda , 144 A.D.3d 844, 40 N.Y.S.3d 274 ). The defendant's valid waiver of his right to appeal precludes review of his contentions that the County Court improvidently exercised its discretion in declining to grant him youthful offender treatment, or that the sentence imposed was excessive (see People v. Pacherille , 25 N.Y.3d 1021, 1024, 10 N.Y.S.3d 178, 32 N.E.3d 393 ; People v. Basurto–Lopez , 166 A.D.3d 643, 84 N.Y.S.3d 905 ; People v. Hardy , 120 A.D.3d 1358, 991 N.Y.S.2d 904 ). However, as the People concede, the defendant's sentence was illegal to the extent that the court imposed a period of postrelease supervision of five years. Pursuant to statute, the court was required to impose a period of postrelease supervision of not less than one and one-half years nor more than three years (see Penal Law §§ 70.02[1][c] ; 70.45[2][e] ). Accordingly, we vacate the period of postrelease supervision imposed and remit the matter to the County Court, Suffolk County, for the imposition of an appropriate period of postrelease supervision in accordance with Penal Law § 70.45(2)(e).
BALKIN, J.P., CHAMBERS, LEVENTHAL and LASALLE, JJ., concur.