Opinion
02-09-2017
The PEOPLE of the State of New York, Respondent, v. Mark C. HULSTRUNK, Appellant.
Theresa M. Suozzi, Saratoga Springs, for appellant. Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.
Theresa M. Suozzi, Saratoga Springs, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.
Before: McCARTHY, J.P., GARRY, LYNCH, ROSE and AARONS, JJ.
Rose, J.Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered July 29, 2014, convicting defendant upon his plea of guilty of the crime of menacing a police officer.
Defendant waived indictment and pleaded guilty to a superior court information charging him with menacing a police officer. Pursuant to a plea agreement, which included a waiver of appeal and satisfied other charges, defendant was sentenced to time-served and five years of probation. He now appeals.Initially, defendant's challenge to his guilty plea as not knowing, voluntary and intelligent survives his unchallenged waiver of appeal, but it was not preserved by an appropriate postallocution motion (see People v. Hernandez, 140 A.D.3d 1521, 1522, 34 N.Y.S.3d 698 [2016], lv. denied 28 N.Y.3d 971, 43 N.Y.S.3d 258, 66 N.E.3d 4 [2016] ). Nor did defendant's allocution trigger the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ). However, defendant's challenge to his sentence as illegal is not precluded by the waiver of appeal (see People v. Howland, 130 A.D.3d 1105, 1105, 13 N.Y.S.3d 613 [2015], lv. denied 26 N.Y.3d 1089, 23 N.Y.S.3d 646, 44 N.E.3d 944 [2015] ) and, since this claim is evident on the face of the record, it is reviewable despite defendant's failure to timely object on this ground (see People v. Santiago, 22 N.Y.3d 900, 903, 977 N.Y.S.2d 144, 999 N.E.2d 507 [2013] ; People v. Nieves, 2 N.Y.3d 310, 315–316, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004] ; People v. Fishel, 128 A.D.3d 15, 17–18, 6 N.Y.S.3d 312 [2015] ).
As defendant argues, and the People concede, the sentence imposed is illegal. The crime of menacing a police officer is a class D violent felony offense (see Penal Law §§ 70.02[1][c] ; 120.18) for which a determinate prison sentence of between two and eight years is required (see Penal Law § 70.02 [2][b–1] ; [3][c][i] ). Given that "an illegal sentence cannot stand, and the entire sentence is part and parcel of the plea bargain," the sentence must be vacated in its entirety (People v. Collier, 79 A.D.3d 1162, 1163, 912 N.Y.S.2d 722 [2010] [internal quotation marks and citations omitted] ). Accordingly, we remit to County Court for resentencing pursuant to the governing sentencing statutes and to provide both parties with the opportunity to withdraw from the plea agreement (see People v. DePerno, 92 A.D.3d 1089, 1090, 937 N.Y.S.2d 765 [2012] ; People v. Collier, 79 A.D.3d at 1163, 912 N.Y.S.2d 722 ).
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; matter remitted to the County Court of Saratoga County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.
McCARTHY, J.P., GARRY, LYNCH and AARONS, JJ., concur.