| People v Helmus |
| 2015 NY Slip Op 01469 [125 AD3d 884] |
| February 18, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Christopher P. Helmus, Also Known as Christopher Helmus,Appellant. |
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm ofcounsel), for respondent.
Appeal by the defendant, as limited by his brief, from a sentence of the CountyCourt, Suffolk County (Condon, J.), imposed March 8, 2012, upon his conviction ofattempted burglary in the second degree, upon his plea of guilty, the sentence being adeterminate term of four years imprisonment and a period of postrelease supervision offive years.
Ordered that the sentence is modified, on the law, by vacating the period ofpostrelease supervision of five years; as so modified, the sentence is affirmed, and thematter is remitted to the County Court, Suffolk County, for the imposition of anappropriate period of postrelease supervision in accordance herewith.
The defendant's valid and unrestricted waiver of his right to appeal, executed as partof his plea agreement, precludes review of his claim that the sentence imposed wasexcessive (see People vRamos, 7 NY3d 737 [2006]; People v Lopez, 6 NY3d 248 [2006]; People vMuniz, 91 NY2d 570 [1998]). However, the defendant's waiver of the right to appealdoes not bar this Court from reviewing the legality of his sentence (see People vSeaberg, 74 NY2d 1, 9 [1989]; People v Jennings, 60 AD3d 694, 694 [2009]; People v Nicholas, 8 AD3d300, 300 [2004]).
Although the People assert that the defendant was properly sentenced as a secondfelony offender, on this record, it is not clear whether the defendant was, in fact,adjudicated a second felony offender. The sentencing minutes reveal that the defendantwas not expressly sentenced by the sentencing court as a second felony offender.However, the pre-sentence report indicates that the defendant had a predicate conviction(see Penal Law § 70.06 [1] [b]), and the uniform order of sentenceand commitment indicates that the defendant was sentenced as a second felony offender.The five-year period of postrelease supervision imposed by the court would be legal onlyif the defendant was adjudicated a second felony offender (see Penal Law§§ 70.06, 70.45 [2]). If the defendant indeed had a prior felonyconviction which qualifies as a predicate felony conviction, a matter not clear on thisrecord, it appears that neither the County Court nor the prosecutor complied with theprocedures required by CPL 400.21 for the sentencing of a second felony offender(see People v Coffie, 272 AD2d 870, 870-871 [2000]).
[*2] Accordingly, the sentence must be modified byvacating the five-year period of postrelease supervision imposed. As so modified, thematter must be remitted to the County Court, Suffolk County, for the filing by the Peopleof a second felony offender statement pursuant to CPL 400.21, if the defendant is allegedto be a second felony offender (see People v Ritorto, 125 AD3d 896 [2015] [decided herewith]), and for the imposition of an appropriate period ofpostrelease supervision pursuant to Penal Law § 70.45. We note that to theextent that People v Young(66 AD3d 1049 [2009]) may be read to hold otherwise, it should not be followed.Dillon, J.P., Dickerson, Roman and Sgroi, JJ., concur.