| People v Bussom |
| 2015 NY Slip Op 01047 [125 AD3d 1331] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vBrian R. Bussom, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Daniel J. Doyle, J.),rendered November 22, 2010. The judgment convicted defendant, upon his plea ofguilty, of course of sexual conduct against a child in the first degree and rape in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the sentence imposed on count three of the indictment and asmodified the judgment is affirmed and the matter is remitted to Supreme Court, MonroeCounty, for resentencing on that count.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcourse of sexual conduct against a child in the first degree (Penal Law§ 130.75 [1] [b]) and rape in the second degree (§ 130.30 [1]),defendant contends that the period of postrelease supervision imposed upon the latterconviction is illegal. It is well settled that "defendant's challenge to the legality of thesentence survives his waiver of the right to appeal" (People v McLellan, 82 AD3d 1668, 1669 [2011]; seePeople v Seaberg, 74 NY2d 1, 10 [1989]), and he may raise such a challenge for thefirst time on appeal (see People v Gonzalez, 99 NY2d 76, 86 [2002]). Here, asthe People correctly concede, the sentence is illegal insofar as the court imposed a15-year period of postrelease supervision on the count of rape in the second degree(see Penal Law § 70.45 [2-a] [a]). Inasmuch as the record does notestablish that the court intended to impose the maximum period of postreleasesupervision, we modify the judgment by vacating the sentence on count three of theindictment charging defendant with rape in the second degree, and we remit the matter toSupreme Court for resentencing on that count (see People v Bowden, 15 AD3d 884, 885 [2005], lvdenied 4 NY3d 851 [2005], reconsideration denied 5 NY3d 786 [2005]; cf. People v Roman, 43 AD3d1282, 1283 [2007], lv denied 9 NY3d 1009 [2009]).Present—Scudder, P.J., Smith, Centra, Lindley and Valentino, JJ.