Opinion
02-10-2017
The PEOPLE of the State of New York, Respondent, v. Barry HOLLIS, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for defendant-appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (David A. Heraty of Counsel), for respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for defendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (David A. Heraty of Counsel), for respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of sexual abuse in the first degree (Penal Law § 130.65[3] ) and rape in the second degree (§ 130.30[1] ). Contrary to defendant's contention, the record establishes that he knowingly, voluntarily and intelligently waived the right to appeal (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ), and that valid waiver encompasses his challenge to the severity of the sentence (see generally People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416 ; People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 ). We agree with defendant, however, that County Court erred in imposing consecutive periods of postrelease supervision. " Penal Law § 70.45(5)(c) requires that the periods of postrelease supervision merge and are satisfied by the service of the longest unexpired term" (People v. Allard, 107 A.D.3d 1379, 1379, 966 N.Y.S.2d 625 ). "Because we cannot allow an illegal sentence to stand" (id. ), we modify the judgment accordingly.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by directing that the periods of postrelease supervision shall run concurrently, and as modified the judgment is affirmed.
CENTRA, J.P., PERADOTTO, CURRAN, TROUTMAN, and SCUDDER, JJ., concur.