| People v Perrin |
| 2012 NY Slip Op 03335 [94 AD3d 1551] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Joshua M.Perrin, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.), renderedOctober 28, 2009. The judgment convicted defendant, upon his plea of guilty, of criminal sale ofmarihuana in the first degree, criminal possession of marihuana in the second degree andcriminal possession of marihuana in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence imposed on count two of the indictment and imposing a sentence of adeterminate term of 2½ years on that count, to run concurrently with the sentences imposedon counts one and three, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal sale of marihuana in the first degree (Penal Law § 221.55), criminal possession ofmarihuana in the second degree (§ 221.25) and criminal possession of marihuana in thefirst degree (§ 221.30). Contrary to defendant's contention, the three-year determinate termof imprisonment with two years of postrelease supervision imposed on counts one and three isnot unduly harsh or severe. Although defendant does not challenge the legality of the sentenceimposed on count two, i.e., a three-year determinate term of imprisonment, we cannot allow thatillegal sentence to stand (see People vVanValkinburgh, 90 AD3d 1553, 1554 [2011]). In the interest of judicial economy, weexercise our inherent authority to correct the illegal sentence (see generally People v Savery, 90 AD3d 1505, 1505 [2011]). Wetherefore modify the judgment by vacating the sentence imposed on count two and imposing asentence of a determinate term of imprisonment of 2½ years on that count, to runconcurrently with the sentences imposed on counts one and three. Because defendant has servedthe maximum term of 2½ years of imprisonment and has been released from custody, aperiod of postrelease supervision may not now be imposed on that count (see People v Williams, 14 NY3d198, 217 [2010], cert denied 562 US —, 131 S Ct 125 [2010]).Present—Scudder, P.J., Smith, Fahey and Sconiers, JJ.