| People v Therrien |
| 2010 NY Slip Op 08020 [78 AD3d 1331] |
| November 10, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Michael Therrien,Appellant. |
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Spain, J. Appeal from a judgment of the County Court of Washington County (McKeighan, J.),rendered January 28, 2010, which revoked defendant's probation and imposed a sentence ofimprisonment.
In 2004, defendant was convicted of sexual abuse in the first degree and sentenced to six months injail followed by 10 years of probation. In 2009, defendant admitted violating certain conditions of hisprobation and it was revoked. Consequently, on August 14, 2009, defendant was resentenced to1½ to 4½ years in prison. Defendant filed a notice of appeal one week later. Due to anerror in sentencing, however, on January 28, 2010, defendant was resentenced again to a2½-year prison term followed by four years of postrelease supervision. Here, defendant's lonecontention is that the four-year period of postrelease supervision imposed upon his resentencing isillegal because, in 2003 when he committed the acts leading to his conviction, the maximum period ofpostrelease supervision for a class D violent felony was three years (see Penal Law §70.02 [1] [c]; § 70.45 [former (2)]; § 130.65). The People agree with defendant'scontention.
We note preliminarily that defendant failed to file a notice of appeal from the resentencing thatoccurred on January 28, 2010. Nevertheless, we will exercise our discretion and entertain the appealon the basis of defendant's August 2009 notice of appeal, which, albeit [*2]premature with respect to the latter resentencing, we consider valid(see CPL 460.10 [6]; People vLerario, 50 AD3d 1396, 1396 [2008], lv denied 10 NY3d 961 [2008]; People vHamilton, 139 AD2d 764, 764 [1988], lv denied 73 NY2d 892 [1989]; People vPopolo, 31 AD2d 761, 761 [1969]). Turning to the merits, "defendant was entitled to besentenced under the provisions of the law in effect when the crime was committed" (People vRafter, 89 AD2d 673 [1982]; see People v Oliver, 1 NY2d 152, 158 [1956]; Peoplev Lynch, 85 AD2d 126, 132 [1982]; People v Thompson, 55 AD2d 528, 529 [1976]).As the applicable maximum period of postrelease supervision was indeed three years at that time(see Penal Law § 70.45 [former (2)]; L 1998, ch 1, § 15), the matter must beremitted to County Court for re-sentencing.
Cardona, P.J., Peters, Kavanagh and Egan Jr., JJ., concur. Ordered that judgment is modified, onthe law, by vacating the sentence imposed; matter remitted to the County Court of Washington Countyfor further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.