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People v. Rowlett

Appellate Division of the Supreme Court of New York, Second Department
May 23, 2006
29 A.D.3d 922 (N.Y. App. Div. 2006)

Opinion

2005-05917.

May 23, 2006.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Gazzillo, J.), rendered May 11, 2005, convicting him of robbery in the third degree, upon his plea of guilty, and sentencing him to a determinate term of 7 years imprisonment with 5 years post-release supervision.

Bridget Fleming, Sag Harbor, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Patrick J. Gunn of counsel), for respondent.

Before: Crane, J.P., Goldstein, Luciano and Dillon, JJ., concur.


Ordered that the judgment is modified, on the law, by vacating the sentence of a determinate term of 7 years imprisonment with 5 years postrelease supervision and substituting therefor a sentence of an indeterminate term of 3½ to 7 years imprisonment; as so modified, the judgment is affirmed.

As the People concede, the sentence imposed, a determinate term of 7 years imprisonment with 5 years post-release supervision, was illegal for the defendant's conviction, as a second felony offender, of robbery in the third degree, a nonviolent class D felony ( see Penal Law §§ 160.05, 70.02 [c]; § 70.06 ; § 70.45; People v. McKay, 10 AD3d 734). The maximum term of imprisonment that may be imposed upon a second felony offender for a conviction of robbery in the third degree is an indeterminate term of 3½ to 7 years, and post-release supervision is only authorized for determinate sentences ( see Penal Law § 70.06 [d]; [4] [b]; § 70.45). The People request that we vacate the defendant's plea, but that remedy is beyond our power, where, as here, the defendant objects ( see Matter of Kisloff v. Covington, 73 NY2d 445, 452; Matter of Campbell v. Pesce, 60 NY2d 165, 169).


Summaries of

People v. Rowlett

Appellate Division of the Supreme Court of New York, Second Department
May 23, 2006
29 A.D.3d 922 (N.Y. App. Div. 2006)
Case details for

People v. Rowlett

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. GERALD ROWLETT…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 23, 2006

Citations

29 A.D.3d 922 (N.Y. App. Div. 2006)
2006 N.Y. Slip Op. 4110
815 N.Y.S.2d 707

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