| People v Bryant |
| 2014 NY Slip Op 03384 [117 AD3d 1551] |
| May 9, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRaymond Bryant, Appellant. (Appeal No. 1.) |
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of counsel), fordefendant-appellant.
Sandra Doorley, DIstrict Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Melchor E. Castro, A.J.),rendered June 4, 2010. The judgment convicted defendant, upon his plea of guilty, ofrape in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the sentence and as modified the judgment is affirmed and the matteris remitted to Monroe County Court for further proceedings in accordance with thefollowing memorandum: In appeal No. 1, defendant appeals from a judgment convictinghim upon his plea of guilty of rape in the first degree (Penal Law § 130.35[4]), as a lesser included offense of the second count of the indictment and, in appeal No.2, he appeals from a judgment convicting him upon his plea of guilty of burglary in thefirst degree (§ 140.30 [3]). He pleaded guilty pursuant to a plea agreementproviding that he would be sentenced as a second felony offender to a determinate termof nine years' incarceration with seven years' postrelease supervision on the rapeconviction, and lesser concurrent terms of incarceration and postrelease supervision onthe burglary conviction. County Court imposed the promised sentence, and defendantappeals.
Contrary to defendant's contention, the sentence is not unduly harsh or severe. Theterm of postrelease supervision imposed on the rape charge in appeal No. 1 is illegal,however, because the minimum period of postrelease supervision on that charge is 10years where, as here, defendant has a prior nonviolent felony conviction (seePenal Law §§ 70.45 [2-a] [i]; 70.80 [9]). "It is well established that aninvalid sentence cannot be allowed to stand" (People v Swan, 158 AD2d 158,163 [1990], lv denied 76 NY2d 991 [1990]; see People v Barber, 31 AD3d 1145, 1145-1146 [2006]).Thus, "[b]ecause neither the sentence pursuant to the plea agreement nor the sentenceactually imposed was authorized by law for the crime of which defendant wasconvicted," we modify the judgment in appeal No. 1 by vacating the sentence and weremit the matter to County Court "for resentencing with the opportunity for both partiesto withdraw from the plea agreement" (People v Cameron, 83 NY2d 838, 840[1994]; see People vIgnatowski, 70 AD3d 1472, 1473 [2010]; People v Martin, 278 AD2d743, 744 [2000]). Because defendant must be given the opportunity to withdraw his pleato the rape conviction, the judgment in appeal No. 2 is modified by vacating the sentenceimposed on the burglary conviction, and the matter is remitted to County Court forresentencing, and to afford defendant the opportunity to withdraw his plea to that chargeif he withdraws his plea to the rape conviction (see generally People v Hendrix, 2 AD3d 1479, 1479-1480[2003]). Present—Scudder, P.J., Smith, Carni, Lindley and Whalen, JJ.