| People v Allen |
| 2008 NY Slip Op 10267 [57 AD3d 1383] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Tawyna P. Allen,Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Michelle H. Crowley of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered April 24,2007. The judgment convicted defendant, upon her plea of guilty, of criminal sale of a controlledsubstance in the third degree, criminal possession of a controlled substance in the third degree andcriminal possession of a controlled substance in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the law byvacating the sentence imposed for criminal possession of a controlled substance in the fourth degreeand as modified the judgment is affirmed, and the matter is remitted to Ontario County Court forresentencing on count three of the indictment.
Memorandum: Defendant appeals from a judgment convicting her, upon her plea of guilty, ofcriminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]), criminalpossession of a controlled substance in the third degree (§ 220.16 [1]) and criminal possessionof a controlled substance in the fourth degree (§ 220.09 [1]). We reject defendant's contentionthat the sentences imposed on the counts of criminal sale and criminal possession of a controlledsubstance in the third degree are unduly harsh and severe. "Defendant was sentenced in accordancewith the plea bargain and should be bound by its terms" (People v McGovern, 265 AD2d 881[1999], lv denied 94 NY2d 882 [2000]).
We further conclude, however, that the sentence imposed on the count of criminal possession of acontrolled substance in the fourth degree is illegal and cannot stand. We note that, because the sentenceis illegal, we reach this issue despite defendant's failure to raise it either at the time of sentencing or onappeal (see People v Adams, 45 AD3d1346 [2007]; People v Martinez, 213 AD2d 1072 [1995]). Pursuant to Penal Law§ 70.70 (3) (b), the sentence imposed for a second felony drug offender convicted of, inter alia,a class C felony offense must include a period of not less than 1½ or more than 3 years ofpostrelease supervision. Although criminal possession of a controlled substance in the fourth degree is aclass C felony and defendant was a second felony drug offender, County Court failed to include aperiod of postrelease supervision in sentencing defendant on that count. We therefore modify thejudgment by vacating the sentence imposed for criminal possession of a controlled substance in thefourth degree, and we remit the matter to County Court for resentencing on count three of theindictment (see People v Sparber, 10NY3d 457, 469 [2008]). Inasmuch as the plea agreement provided in relevant part that [*2]defendant would be sentenced to a three-year period of postreleasesupervision, defendant need not be afforded the opportunity to withdraw her plea of guilty prior toresentencing (cf. People v Waggoner, 53AD3d 1143 [2008]). Present—Hurlbutt, J.P., Centra, Fahey, Pine and Gorski, JJ.