| People v VanValkinburgh |
| 2011 NY Slip Op 09449 [90 AD3d 1553] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JamesVanValkinburgh, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a resentence of the Supreme Court, Erie County (M. William Boller, A.J.),rendered June 23, 2010. Defendant was resentenced upon his conviction of rape in the thirddegree (three counts).
It is hereby ordered that the resentence so appealed from is unanimously reversed on the lawand the matter is remitted to Supreme Court, Erie County, for resentencing.
Memorandum: Defendant appeals from a resentence upon his conviction of three counts ofrape in the third degree (Penal Law § 130.25 [2]). Defendant's contentions regarding theseverity of his resentence are encompassed by the valid waiver of the right to appeal from theresentence (see People v Lopez, 6NY3d 248, 256 [2006]). Contrary to defendant's contention, the waiver of the right to appealat the time of the plea is not subject to our review inasmuch as he did not appeal from thejudgment, and the resentence occurred more than 30 days after the original sentence (seeCPL 450.30 [3]). We nevertheless note, however, that defendant's contention that Supreme Courtimposed an aggregate period of 30 years of postrelease supervision is not supported by the record(cf. People v Kennedy, 78 AD3d1477, 1479 [2010], lv denied 16 NY3d 798 [2011]). As defendant has failed torecognize, the periods of postrelease supervision imposed on the consecutive terms ofimprisonment "shall merge with and be satisfied by discharge of the period of post[ ]releasesupervision having the longest unexpired time to run" (Penal Law § 70.45 [5] [c]).
Although defendant does not challenge the legality of the sentence, the court was required toimpose determinate terms of imprisonment in "whole or half years" (Penal Law § 70.80[3]), and we cannot allow the illegal sentences of 2