| People v Donofrio |
| 2014 NY Slip Op 08858 [123 AD3d 941] |
| December 17, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael Donofrio, Appellant. |
Neal D. Futerfas, White Plains, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu and RichardLongworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Neary, J.), rendered January 9, 2013, convicting him of burglary in the second degree(three counts), upon his plea of guilty, and sentencing him to concurrent determinateterms of 10 years of imprisonment on all counts, and a period of seven years ofpostrelease supervision with respect to each count.
Ordered that the judgment is modified, on the law, by reducing the period ofpostrelease supervision of seven years to five years with respect to each count; as somodified, the judgment is affirmed.
The minutes of the defendant's plea proceeding reveal that the court promised thedefendant that it would impose a 10-year term of imprisonment for each of three countsof burglary in the second degree, with the sentences to be served concurrently to eachother, plus a five-year period of postrelease supervision with respect to each count.However, at the sentencing hearing on January 9, 2013, although the court imposed thepromised 10-year concurrent sentences, it imposed a period of seven years of postreleasesupervision. As the People correctly concede, not only did this seven-year postreleasesupervision period deviate from the earlier promise, it also exceeded the statutorymaximum period of five years (see Penal Law § 70.45).Accordingly, the period of postrelease supervision with respect to each count must bereduced to the extent indicated herein (see People v Robinson, 74 AD3d 1103 [2010]; People v Serrano, 21 AD3d970 [2005]).
The defendant's valid waiver of his right to appeal precludes appellate review of hischallenge to the hearing court's suppression determination (see People v Kemp,94 NY2d 831 [1999]; People vPersaud, 118 AD3d 820 [2014]) and of his claim that the agreed-upon sentencewas excessive (see People vLopez, 6 NY3d 248 [2006]; People v Callahan, 80 NY2d 273, 281[1992]; People v Seaberg, 74 NY2d 1, 10 [1989]; People v Arias, 100 AD3d914, 915 [2012]; People vHawthorne, 85 AD3d 819 [2011]). Dillon, J.P., Dickerson, Austin and Cohen,JJ., concur.