| People v Medina |
| 2017 NY Slip Op 05244 [151 AD3d 1082] |
| June 28, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Juan Medina, Appellant. |
James D. Licata, New City, NY (Ellen O'Hara Woods of counsel), for appellant.
Thomas P. Zugibe, District Attorney, New City, NY (Itamar J. Yeger and Carrie A. Ciganekof counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County(Apotheker, J.), rendered February 10, 2014, convicting him of criminal possession of acontrolled substance in the third degree, upon his plea of guilty, and sentencing him to adeterminate term of imprisonment of three years plus three years of postrelease supervision.
Ordered that the judgment is modified, on the law, by vacating the period of postreleasesupervision; as so modified, the judgment is affirmed, and the matter is remitted to the CountyCourt, Rockland County, for resentencing in accordance herewith.
Contrary to the People's contention, since the County Court's colloquy with the defendantsuggested that the right to appeal is automatically extinguished upon the entry of a plea of guilty,the defendant's purported waiver of his right to appeal was invalid (see People v Moyett, 7 NY3d 892,892-893 [2006]; People v Lopez, 6NY3d 248, 257 [2006]; People vBennett, 115 AD3d 973, 973 [2014]; People v Jacob, 94 AD3d 1142, 1143-1144 [2012]; People v Mayo, 77 AD3d 683,683-684 [2010]) and does not preclude review of his claim that the sentence imposed wasexcessive. Moreover, even a valid waiver of the right to appeal does not preclude this Court fromreviewing the defendant's further contention that the sentence was illegal (see People vLopez, 6 NY3d at 255).
Upon his conviction of criminal possession of a controlled substance in the third degree, thedefendant was sentenced, inter alia, to a period of postrelease supervision of three years. UnderPenal Law § 70.45 (2) (b), the period of postrelease supervision applicable to asentence imposed pursuant to Penal Law § 70.70 (2) for a conviction of criminalpossession of a controlled substance in the third degree must be between one and two years.Therefore, the period of postrelease supervision imposed was illegal.
The remainder of the defendant's sentence was not excessive (see People v Suitte, 90AD2d 80 [1982]).
Accordingly, we vacate the period of postrelease supervision imposed upon the defendant'sconviction and remit the matter to the County Court, Rockland County, for resentencing to aproper period of postrelease supervision in accordance with Penal Law § 70.45 (2)(b). Mastro, J.P., Rivera, Roman and Sgroi, JJ., concur.