Opinion
2013-11-20
The PEOPLE, etc., respondent, v. William MORRISOHN, appellant.
Malvina Nathanson, New York, N.Y., for appellant. Francis D. Phillips II, District Attorney, Middletown, N.Y. (Elizabeth L. Guinup of counsel), for respondent.
Malvina Nathanson, New York, N.Y., for appellant. Francis D. Phillips II, District Attorney, Middletown, N.Y. (Elizabeth L. Guinup of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.), rendered January 13, 2012, convicting him of attempted burglary in the second degree, upon his plea of guilty, and sentencing him to a determinate term of imprisonment of 3 1/2 years plus a period of 5 years of postrelease supervision. The appeal brings up for review a permanent order of protection issued at the time of sentencing.
ORDERED that the judgment is modified, on the law, by vacating the period of 5 years of postrelease supervision; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Orange County, for the imposition of an appropriate period of postrelease supervision in accordance with Penal Law § 70.45(2)(e).
Although the defendant's contention concerning the duration of the order of protection survives his valid waiver of his right to appeal ( see People v. Cedeno, 107 A.D.3d 734, 965 N.Y.S.2d 887, lv. denied21 N.Y.3d 1041, 972 N.Y.S.2d 538, 995 N.E.2d 854), the defendant failed to preserve this contention for appellate review ( see id.; CPL 470.05[2]; People v. Nieves, 2 N.Y.3d 310, 316–318, 778 N.Y.S.2d 751, 811 N.E.2d 13). We decline to review it in the exerciseof our interest of justice jurisdiction ( see People v. Cedeno, 107 A.D.3d at 734, 965 N.Y.S.2d 887).
As the defendant contends and the People correctly concede, the period of postrelease supervision imposed at sentencing exceeds the statutory maximum ( see Penal Law § 70.45[2][e] ). Accordingly, we remit the matter to the County Court, Orange County, for the imposition of an appropriate period of postrelease supervision in accordance with Penal Law § 70.45(2)(e). ENG, P.J., ANGIOLILLO, BALKIN and HALL, JJ., concur.