Opinion
No. 01963-2005.
Decided on December 1, 2006.
Defendant has served and filed a pro se CPL 440 motion dated November 20, 2006, claiming his sentence was illegal in two ways: (1) his
determinate sentence of two years should have been an indeterminate sentence;
(2) his post release supervision period of five years should have been a shorter period. For the reasons explained below, the motion is summarily denied.
On July 7, 2005 defendant pled guilty to attempted criminal possession of a weapon in the third degree (Penal Law 110/265.02 [4]). He was sentenced on October 13, 2005 a two year determinate sentence as a second felony offender pursuant to Penal law § 70.06, and five years post-release supervision.
Defendant's present claims rest on the mistaken propositions
that, (1) his conviction was a non-violent felony and (2) that he was sentenced under Penal Law 70.02, entitling him to a post-release supervision period less than
five years. He is wrong on both counts.
First, his conviction is an E violent felony, according to Penal Law 70.02 (1) (d), thereby requiring a determinate, not an indeterminate, sentence. Second, Penal Law 70.45 (2) provides that the period of post-release supervision shall be five years, with certain exceptions not applicable here for sentences imposed pursuant to Penal Law 70.02. Because defendant had a prior non-violent felony conviction, and was adjudicated as a second felony offender, he had to be sentenced pursuant to Penal Law 70.06 , which mandates the five year period of post-release supervision.
Accordingly, this motion must be and hereby is DENIED in all respects.
The Clerk of the Court is directed to provide a copy of this Decision and Order by ordinary mail, first class, to defendant DeShawn S. Branch,
DIN No. 05-A-5402, Bare Hill Correctional Facility, Caller Box 20, 181 Branch Road, Malone, New York 12953 and to the Kings County District Attorney's Office, 350 Jay Street, Brooklyn, NY 11201.