| People v Hulstrunk |
| 2017 NY Slip Op 01033 [147 AD3d 1159] |
| February 9, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Mark C.Hulstrunk, Appellant. |
Theresa M. Suozzi, Saratoga Springs, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered July 29, 2014, convicting defendant upon his plea of guilty of the crime of menacing apolice officer.
Defendant waived indictment and pleaded guilty to a superior court information charginghim with menacing a police officer. Pursuant to a plea agreement, which included a waiver ofappeal and satisfied other charges, defendant was sentenced to time-served and five years ofprobation. He now appeals.
Initially, defendant's challenge to his guilty plea as not knowing, voluntary and intelligentsurvives his unchallenged waiver of appeal, but it was not preserved by an appropriatepostallocution motion (see People vHernandez, 140 AD3d 1521, 1522 [2016], lv denied 28 NY3d 971 [2016]). Nordid defendant's allocution trigger the narrow exception to the preservation requirement (seePeople v Lopez, 71 NY2d 662, 666 [1988]). However, defendant's challenge to his sentenceas illegal is not precluded by the waiver of appeal (see People v Howland, 130 AD3d 1105, 1105 [2015], lvdenied 26 NY3d 1089 [2015]) and, since this claim is evident on the face of the record, it isreviewable despite defendant's failure to timely object on this ground (see People v Santiago, 22 NY3d900, 903 [2013]; People vNieves, 2 NY3d 310, 315-316 [2004]; People v Fishel, 128 AD3d 15, 17-18 [2015]).
[*2] As defendant argues, and the People concede, the sentenceimposed is illegal. The crime of menacing a police officer is a class D violent felony offense(see Penal Law §§ 70.02 [1] [c]; 120.18) for which a determinateprison sentence of between two and eight years is required (see Penal Law§ 70.02 [2] [b-1]; [3] [c] [i]). Given that "an illegal sentence cannot stand, and theentire sentence is part and parcel of the plea bargain," the sentence must be vacated in its entirety(People v Collier, 79 AD3d1162, 1163 [2010] [internal quotation marks and citations omitted]). Accordingly, we remitto County Court for resentencing pursuant to the governing sentencing statutes and to provideboth parties with the opportunity to withdraw from the plea agreement (see People v DePerno, 92 AD3d1089, 1090 [2012]; People v Collier, 79 AD3d at 1163).
McCarthy, J.P., Garry, Lynch and Aarons, JJ., concur. Ordered that the judgment is modified,on the law, by vacating the sentence imposed; matter remitted to the County Court of SaratogaCounty for further proceedings not inconsistent with this Court's decision; and, as so modified,affirmed.