| People v DePerno |
| 2012 NY Slip Op 01154 [92 AD3d 1089] |
| February 16, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Daniel W. DePerno, Appellant. |
—[*1] Mark D. Suben, District Attorney, Cortland, for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Cortland County (Campbell,J.), rendered September 30, 2010, convicting defendant upon his plea of guilty of the crimes ofcriminal sexual act in the second degree, rape in the second degree and rape in the third degree.
In satisfaction of a 31-count indictment for various sexual crimes against the victim over thecourse of three years, beginning when she was 14 years old, defendant pleaded guilty in 2010 tothree crimes that he had committed in 2006. In accordance with the plea agreement, CountyCourt sentenced defendant to prison terms of 4½ years followed by 10 years of postreleasesupervision for his conviction of criminal sexual act in the second degree, four years followed by10 years of postrelease supervision for his conviction of rape in the second degree, and 1½years followed by 10 years of postrelease supervision for his conviction of rape in the thirddegree, with the prison terms to run consecutively. Defendant's aggregate sentence was thus 10years in prison followed by 10 years of postrelease supervision. Defendant appeals, addressingonly his sentence.
Defendant contends, and the People concede, that the sentences imposed were illegal. Adefendant must be sentenced according to the law as it existed at the time that he or shecommitted the offense (see People v Sawinski, 246 AD2d 689, 692 [1998], lvdenied 91 NY2d 930 [1998]). In 2007, the Legislature categorized rape in the second degreeand criminal sexual [*2]act in the second degree as violent felonyoffenses and enacted the felony sex offender statute (see L 2007, ch 7, §§ 30,32). Because defendant committed the crimes at issue here in 2006—prior to theLegislature's amendments to the relevant statutes—the prison sentences for these crimeshad to be indeterminate terms, and postrelease supervision was not authorized (see People v Sapienza, 75 AD3d768, 772-773 [2010]). We therefore vacate the illegal sentences that were imposed. As theagreed-upon sentences cannot legally be imposed, we remit to County Court for resentencing inaccordance with the relevant statutes, with the opportunity for either party to withdraw from theplea agreement (see People v Cameron, 83 NY2d 838, 840 [1994]; People v Ryan, 83 AD3d 1128,1130 [2011]).
Mercure, A.P.J., Rose, Spain and Malone Jr., JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentences imposed; matter remitted to the County Court ofCortland County for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed.