Opinion
2014-03-28
The PEOPLE of the State of New York, Respondent, v. Dale A. BELL, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert B. Hallborg, Jr., of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert B. Hallborg, Jr., of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS AND VALENTINO, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the period of postrelease supervision and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for further proceedings in accordance with the following Memorandum: On this appeal by defendant from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3] ), the People correctly concede that the period of postrelease supervision imposed by County Court must be vacated because the court “misapprehended its sentencing discretion with respect to that period” ( People v. Britt, 67 A.D.3d 1023, 1024, 888 N.Y.S.2d 761,lv. denied14 N.Y.3d 770, 898 N.Y.S.2d 101, 925 N.E.2d 106;see People v. Trott, 105 A.D.3d 1416, 1417–1418, 963 N.Y.S.2d 806,lv. denied21 N.Y.3d 1020, 971 N.Y.S.2d 503, 994 N.E.2d 399;People v. Wilkins, 104 A.D.3d 1156, 1157, 960 N.Y.S.2d 776,lv. denied21 N.Y.3d 1011, 971 N.Y.S.2d 263, 993 N.E.2d 1287). The record demonstrates that, during the plea colloquy, the court informed defendant that the minimum period of postrelease supervision for the crime to which he pleaded guilty, a class C violent felony offense ( see § 70.02[1][b] ), was five years when, in fact, the minimum period is 2 1/2 years ( see§ 70.45[2][f] ). We therefore vacate the period of postrelease supervision and remit the matter to County Court for “reconsideration of the length of that period and the reimposition of a period of postrelease supervision thereafter” ( Britt, 67 A.D.3d at 1024, 888 N.Y.S.2d 761).