Opinion
2011-11-10
The PEOPLE of the State of New York, Respondent,v.Joseph G. ORMSBY, Appellant.
Lisa A. Burgess, Indian Lake, for appellant.Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G. Blatchley of counsel), for respondent.
Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered August 6, 2010, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.
In satisfaction of a three-count indictment, defendant pleaded guilty to criminal possession of a controlled substance in the third degree and waived his right to appeal. Under the terms of the plea agreement, he was to be sentenced to 4 1/2 years in prison followed by three years of postrelease supervision. Defendant was sentenced accordingly and he now appeals.
Defendant contends that his sentence is illegal because he should have been sentenced to two years of postrelease supervision instead of three years. Preliminarily, we note that defendant's challenge to the legality of the sentence is not precluded by his waiver of the right to appeal ( see People v. Greathouse, 62 A.D.3d 1212, 1213, 879 N.Y.S.2d 629 [2009], lv. denied 13 N.Y.3d 744, 886 N.Y.S.2d 98, 914 N.E.2d 1016 [2009]; People v. Robertson, 46 A.D.3d 928, 929, 846 N.Y.S.2d 755 [2007], lv. denied 10 N.Y.3d 844, 859 N.Y.S.2d 402, 889 N.E.2d 89 [2008] ). Turning to the merits, Penal Law § 70.45(2)(b) provides
that the period of postrelease supervision imposed upon a defendant convicted of a class B felony under Penal Law § 70.70 and sentenced to a determinate term of imprisonment “shall not be less than one year nor more than two years.” Defendant here was sentenced under Penal Law § 70.70(2)(a)(i) and received a period of postrelease supervision of three years, which the People concede was error. Therefore, the judgment must be modified accordingly ( see People v. Robertson, 46 A.D.3d at 929, 846 N.Y.S.2d 755; People v. Brill, 42 A.D.3d 823, 823, 839 N.Y.S.2d 634 [2007], lv. denied 9 N.Y.3d 960, 848 N.Y.S.2d 28, 878 N.E.2d 612 [2007] ).
ORDERED that the judgment is modified, on the law, by reversing so much thereof as imposed upon defendant a three-year period of postrelease supervision; sentence vacated to said extent and a two-year period of postrelease supervision is imposed; and, as so modified, affirmed.
SPAIN, J.P., MALONE JR., KAVANAGH, GARRY and EGAN JR., JJ., concur.