| People v Young |
| 2009 NY Slip Op 07872 [66 AD3d 1049] |
| October 27, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Calvin Young, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel), forrespondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court,Suffolk County (R. Doyle, J.), imposed June 14, 2007, upon his conviction of attempted criminalpossession of a weapon in the third degree, upon his plea of guilty, the sentence being adeterminate term of 2½ years imprisonment, and a period of postrelease supervision of fiveyears.
Ordered that the sentence is modified, on the law, by vacating the period of postreleasesupervision of five years; as so modified, the sentence is affirmed, and the matter is remitted tothe Supreme Court, Suffolk County, for the imposition of an appropriate period of postreleasesupervision in accordance with Penal Law § 70.45 (2) (e).
The defendant's valid and unrestricted waiver of his right to appeal, executed as part of hisplea agreement, precludes review of his claim that the sentence imposed was excessive (seePeople v Lopez, 6 NY3d 248 [2006]; People v Hidalgo, 91 NY2d 733 [1998];People v White, 62 AD3d 916 [2009]). However, the defendant's waiver of the right toappeal does not bar this Court from reviewing the legality of his sentence (see People vSeaberg, 74 NY2d 1, 9 [1989]; People v Holcomb, 61 AD3d 1356 [2009];People v Jennings, 60 AD3d 694 [2009]; People v Jenkins, 46 AD3d 392 [2007];People v Nicholas, 8 AD3d 300 [2004]). Although the presentence report indicates thatthe defendant previously was convicted of a nonviolent felony, he was never arraigned on apredicate felony offender statement, or adjudicated a second felony offender. Accordingly, theSupreme Court could not have properly sentenced the defendant to a five-year period ofpostrelease supervision as a second felony offender (see People v Cole, 31 AD3d 1190[2006]; People v Coffie, 272 AD2d 870 [2000]). As a first violent felony offenderconvicted of the class E violent felony of attempted criminal possession of a weapon in the thirddegree, the defendant was subject to a mandatory period of postrelease supervision of not lessthan 1½ years nor greater than three years (see Penal Law § 70.02 [3] [d];§ 70.45 [2] [e]). Since the five-year period of postrelease supervision imposed by the courtexceeds the statutory maximum, we remit the matter to the Supreme Court, Suffolk County, forthe imposition of an appropriate period of postrelease supervision in accordance with Penal Law§ 70.45 (2) (e). Skelos, J.P., Miller, Eng and Lott, JJ., concur.