| People v Southard |
| 2018 NY Slip Op 05109 [163 AD3d 1461] |
| July 6, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Kenneth L. Southard, Appellant. |
Cara A. Waldman, Fairport, for defendant-appellant.
Appeal from a judgment of the Steuben County Court (Peter C. Bradstreet, J.), renderedNovember 24, 2014. The judgment convicted defendant, upon his plea of guilty, of attemptedburglary in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reducing the period of postrelease supervision to a period of 5 years and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of attempted burglary in the first degree (Penal Law §§ 110.00, 140.30 [2]).Defendant was sentenced, as a second felony offender, to a determinate term of 5 years'imprisonment and 10 years' postrelease supervision (PRS). As defendant correctly contends, the10-year period of PRS is illegal. The only legal period of PRS under these circumstances is 5years (see § 70.45 [2]). Although this issue was not raised before thesentencing court, we cannot allow an illegal sentence to stand (see People v Adams, 126 AD3d1405, 1406 [4th Dept 2015], lv denied 25 NY3d 1158 [2015]). We therefore modifythe judgment by reducing the period of PRS from 10 years to 5 years (see generally People v Hughes, 112AD3d 1380, 1381 [4th Dept 2013], lv denied 23 NY3d 1038 [2014]).
We note that the uniform sentence and commitment sheet incorrectly states that theunderlying offense was committed on August 23, 2013, and it must be amended to state thecorrect offense date of August 28, 2013. Additionally, the certificate of conviction does notreflect defendant's status as a second felony offender, and it must be amended accordingly (see generally People v Johnson, 161AD3d 1529, 1529 [4th Dept 2018]). Present—Peradotto, J.P., Lindley, NeMoyer,Curran and Troutman, JJ.