| People v Smith |
| 2009 NY Slip Op 04583 [63 AD3d 1625] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v William D.Smith, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (J. Michael Marion of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), renderedFebruary 14, 2008. The judgment convicted defendant, upon his plea of guilty, of attempted rapein the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reducing the period of postrelease supervision to a period of five years and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofattempted rape in the first degree (Penal Law §§ 110.00, 130.35 [1]). Defendantfailed to preserve for our review his contention that his plea was not knowingly entered (see People v VanDeViver, 56 AD3d1118 [2008], lv denied 11 NY3d 931 [2009]), and in any event that contention iswithout merit. Defendant also failed to preserve for our review his contention that County Courterred in imposing an enhanced sentence without affording him the opportunity to withdraw hisplea (see id. at 1118-1119). We note, however, that the People correctly concede that theenhanced sentence is illegal inasmuch as it includes a 12-year period of postrelease supervision.At the time defendant committed the crime of which he was convicted, the maximum period ofpostrelease supervision that could be imposed for a class C violent felony conviction was fiveyears (see Penal Law former § 70.45 [2] [f]). We therefore modify the judgmentby reducing the period of postrelease supervision to a period of five years. Because the sentenceas modified complies with the plea agreement, the sentence is no longer improperly enhanced.Present—Hurlbutt, J.P., Smith, Centra, Pine and Gorski, JJ.