Opinion
06-23-2016
The PEOPLE of the State of New York, Respondent, v. William BLAIR, Appellant.
Marcy I. Flores, Warrensburg, for appellant. Marsha K. Purdue, District Attorney, Indian Lake, for respondent.
Marcy I. Flores, Warrensburg, for appellant.
Marsha K. Purdue, District Attorney, Indian Lake, for respondent.
Before: LAHTINEN, J.P., McCARTHY, GARRY, CLARK and MULVEY, JJ.
LAHTINEN, J.P. Appeal from a judgment of the County Court of Hamilton County (Feldstein, J.), rendered September 25, 2013, convicting defendant upon his plea of guilty of the crimes of rape in the second degree and endangering the welfare of a child.
In satisfaction of a nine-count amended indictment, defendant pleaded guilty to rape in the second degree and endangering the welfare of a child and waived his right to appeal. County Court sentenced defendant, in accordance with the plea agreement, to a prison term of five years followed by 15 years of postrelease supervision on the rape conviction and a concurrent one-year term on the remaining conviction. Defendant appeals.
To the extent that defendant challenges the factual sufficiency of his plea allocution, it is precluded by his valid appeal waiver, which he does not take issue with on appeal (see People v. Love, 137 A.D.3d 1486, 1487, 28 N.Y.S.3d 479 [2016] ; People v. Koechel, 132 A.D.3d 1020, 1020, 17 N.Y.S.3d 326 [2015] ; People v. Jackson, 128 A.D.3d 1279, 1280, 9 N.Y.S.3d 739 [2015], lv. denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 [2015] ). Furthermore, the issue is not preserved as the record fails to disclose that defendant made any postallocution motion to withdraw his plea, and the narrow exception to the preservation requirement is not implicated as defendant made no statements during the plea colloquy that negated an essential element of the crimes (see People v. Koechel, 132 A.D.3d at 1021, 17 N.Y.S.3d 326 ; People v. Watson, 115 A.D.3d 1016, 1017, 981 N.Y.S.2d 627 [2014], lv. denied 24 N.Y.3d 965, 996 N.Y.S.2d 225, 20 N.E.3d 1005 [2014] ).
Finally, although the waiver of appeal precludes defendant's challenge to the severity of the sentence imposed (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Smith, 136 A.D.3d 1107, 1109, 25 N.Y.S.3d 395 [2016] ), it does not preclude his challenge to the legality of the sentence (see People v. Clapper, 133 A.D.3d 1036, 1036, 19 N.Y.S.3d 194 [2015] ). Defendant contends, and the People concede, that the 15–year period of postrelease supervision was error. Defendant pleaded guilty to rape in the second degree, a class D violent felony (see Penal Law § 70.02[1][c] ). The maximum permissible postrelease supervision term is 10 years (see Penal Law § 70.45[2–a][d] ). Therefore, we modify the judgment to the extent of imposing a reduced postrelease period of supervision of 10 years.
ORDERED that the judgment is modified, on the law, by reducing the period of postrelease supervision to 10 years, and, as so modified, affirmed.
McCARTHY, GARRY, CLARK and MULVEY, JJ., concur.