| People v Terry |
| 2011 NY Slip Op 09471 [90 AD3d 1571] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v William Terry,Appellant. |
—[*1] John C. Tunney, District Attorney, Bath (Amanda M. Chafee of counsel), forrespondent.
Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.), renderedAugust 12, 2009. The judgment convicted defendant, upon his plea of guilty, of course of sexualconduct against a child in the second degree and endangering the welfare of a child.
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 three years and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of,inter alia, course of sexual conduct against a child in the second degree for conduct occurringbetween April 2003 and August 2005 (Penal Law § 130.80 [1]). Contrary to defendant'scontention, County Court did not err in failing sua sponte to order a competency examinationpursuant to CPL 730.30 (1). "Although defendant stated during the plea proceeding that he wastaking medication and was being treated for a mental disability, defendant nonetheless respondedappropriately to questioning by the court . . . and was 'unequivocal in assuring thecourt that he understood the meaning of the plea proceeding, and the implications of his decisionto accept the plea agreement' " (People vYoho, 24 AD3d 1247, 1248 [2005]). Further, the court had the opportunity to interactwith defendant and in fact noted on the record its observations that defendant appeared "level andunaffected," did not "appear particularly nervous or distraught," and "look[ed] pretty stable" (see generally People v Phillips, 16NY3d 510, 517 [2011]; People vJermain, 56 AD3d 1165 [2008], lv denied 11 NY3d 926 [2009]). To the extentthat defendant's further contention that he was denied effective assistance of counsel survives hisguilty plea (see People v Garner, 86AD3d 955, 956 [2011]), we reject that contention (see generally People v Ford, 86NY2d 397, 404 [1995]). Finally, although we reject defendant's challenge to the severity of theterms of incarceration imposed, we conclude that the court erred in imposing a 10-year period ofpostrelease supervision because the crime for which it was imposed, i.e., course of sexualconduct against a child in the second degree, was committed prior to the effective date of PenalLaw § 70.45 (2-a). Defendant's failure to preserve that issue for our review or to raise it onappeal is of no moment, inasmuch as we cannot permit an illegal sentence to stand (seePeople v Moore [appeal No. 1], 78 AD3d 1658 [2010], lv denied 17 NY3d 798[2011]). We therefore modify the judgment by reducing the period of postrelease supervision to aperiod of three years, the maximum allowed (see People v Smith, 63 AD3d 1625 [2009], lv denied 13NY3d 800 [2009]). Present—Scudder, P.J., Centra, Green, Gorski and Martoche, JJ.