| People v Blair |
| 2016 NY Slip Op 04981 [140 AD3d 1478] |
| June 23, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vWilliam Blair, Appellant. |
Marcy I. Flores, Warrensburg, for appellant.
Marsha K. Purdue, District Attorney, Indian Lake, for respondent.
Lahtinen, J.P. Appeal from a judgment of the County Court of Hamilton County(Feldstein, J.), rendered September 25, 2013, convicting defendant upon his plea ofguilty of the crimes of rape in the second degree and endangering the welfare of achild.
In satisfaction of a nine-count amended indictment, defendant pleaded guilty to rapein the second degree and endangering the welfare of a child and waived his right toappeal. County Court sentenced defendant, in accordance with the plea agreement, to aprison term of five years followed by 15 years of postrelease supervision on the rapeconviction and a concurrent one-year term on the remaining conviction. Defendantappeals.
To the extent that defendant challenges the factual sufficiency of his plea allocution,it is precluded by his valid appeal waiver, which he does not take issue with on appeal(see People v Love, 137AD3d 1486, 1487 [2016]; People v Koechel, 132 AD3d 1020, 1020 [2015]; People v Jackson, 128 AD3d1279, 1280 [2015], lv denied 26 NY3d 930 [2015]). Furthermore, the issueis not preserved as the record fails to disclose that defendant made any postallocutionmotion to withdraw his plea, and the narrow exception to the preservation requirement isnot implicated as defendant made no statements during the plea colloquy that negated anessential element of the crimes (see People v Koechel, 132 AD3d at 1021; People v Watson, 115 AD3d1016, 1017 [2014], lv denied 24 NY3d 965 [2014]).
Finally, although the waiver of appeal precludes defendant's challenge to the severityof the sentence imposed (seePeople v Lopez, 6 NY3d 248, 256 [2006]; People v Smith, 136 AD3d[*2]1107, 1109 [2016]), it does not preclude hischallenge to the legality of the sentence (see People v Clapper, 133 AD3d 1036, 1036 [2015]).Defendant contends, and the People concede, that the 15-year period of postreleasesupervision was error. Defendant pleaded guilty to rape in the second degree, a class Dviolent felony (see Penal Law § 70.02 [1] [c]). The maximumpermissible postrelease supervision term is 10 years (see Penal Law§ 70.45 [2-a] [d]). Therefore, we modify the judgment to the extent ofimposing a reduced postrelease period of supervision of 10 years.
McCarthy, Garry, Clark and Mulvey, JJ., concur. Ordered that the judgment ismodified, on the law, by reducing the period of postrelease supervision to 10 years, and,as so modified, affirmed.