Opinion
2004-00617.
April 4, 2005.
Appeal by the People from an order of the County Court, Orange County (Berry, J.), dated December 10, 2003, denying their motion pursuant to CPL article 440 to set aside the probationary portion of the defendant's sentence of five years and to resentence him to a period of 10 years' probation.
Francis D. Phillips II, District Attorney, Goshen, N.Y. (Andrew R. Kass of counsel), for appellant.
Mathew B. Tully, Albany, N.Y., for respondent.
Before: Cozier, J.P., Ritter, Spolzino and Skelos, JJ., concur.
Ordered that the order is reversed, on the law, the motion is granted, the portion of the defendant's sentence sentencing him to a term of five years' probation is vacated, and the matter is remitted to the County Court, Orange County, for resentencing.
The defendant was convicted, as a youthful offender, of attempted sexual abuse in the first degree (Penal Law § 130.65) which is a "sexual assault" as defined in Penal Law § 65.00 (3) (d). "[T]he mandatory term of probation for a youthful offender who pleads guilty or is found guilty of a sexual assault is 10 years, not five years" ( People v. Torrez, 5 AD3d 405, 406; see People v. Gray, 2 AD3d 275; People v. Andrew W., 189 Misc 2d 479). Accordingly, the portion of the defendant's sentence sentencing him to a term of five years' probation was illegal and should have been set aside ( see CPL 440.40).