| People v Allard |
| 2013 NY Slip Op 04129 [107 AD3d 1379] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Raymond E. Allard, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.),rendered September 6, 2011. The judgment convicted defendant, upon his plea of guilty,of rape in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by directing that the periods of postrelease supervision imposed shall runconcurrently and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him, following his plea ofguilty, of two counts of rape in the second degree (Penal Law § 130.30 [1]),defendant contends that County Court erred in its "determination" that he is a "sexoffender." We reject that contention. The Correction Law requires that a defendantconvicted under Penal Law § 130.30 be classified as a sex offender (seeCorrection Law § 168-a [2] [a] [i]). Defendant's reliance on People v Allen (64 AD3d1190, 1191 [2009], lv denied 13 NY3d 794 [2009]) is misplaced. Unlikehere, the defendant in Allen was convicted under, inter alia, Penal Law §250.45 (3) (a). The Correction Law does not require that a defendant convicted underthat section of the Penal Law be classified as a sex offender if, upon a motion by thedefendant, the sentencing court determines that such a classification would be "undulyharsh and inappropriate" (Correction Law § 168-a [2] [e]). Finally, although notraised by defendant, we conclude that the court erred in imposing consecutive periods ofpostrelease supervision. Penal Law § 70.45 (5) (c) requires that the periods ofpostrelease supervision merge and are satisfied by the service of the longest unexpiredterm (see People vKennedy, 78 AD3d 1477, 1479 [2010], lv denied 16 NY3d 798 [2011]).Because we cannot allow an illegal sentence to stand (see People v Davis, 37 AD3d1179, 1180 [2007], lv denied 8 NY3d 983 [2007]), we modify the judgmentaccordingly. Present—Smith, J.P., Peradotto, Carni, Valentino and Martoche, JJ.