Opinion
2013-06-19
The PEOPLE, etc., respondent, v. Karl DALLAS, appellant.
Thomas N.N. Angell, Poughkeepsie, N.Y. (Eric Knapp of counsel), for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.
Thomas N.N. Angell, Poughkeepsie, N.Y. (Eric Knapp of counsel), for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Greller, J.), rendered December 1, 2011, convicting him of criminal sale of a controlled substance in the third degree, *873upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Dutchess County, for further proceedings in accordance herewith.
The defendant's argument that the County Court misapprehended, and therefore, failed to impose, the promised period of postrelease supervision is unpreserved for appellate review ( seeCPL 470.05[2] ). However, we reach the issue in the exercise of our interest of justice jurisdiction. Since the County Court misapprehended, and therefore, failed to impose, the promised period of postrelease supervision, we vacate the sentence and remit the matter to the County Court, Dutchess County, to allow the court to (1) impose the promised sentence, consisting of a term of imprisonment of 3 1/2 years and a period of postrelease supervision of 1 1/2 years, (2) afford the defendant the opportunity to accept the previously-imposed sentence, including the enhanced period of postrelease supervision, or, (3) in the absence of either of those results, permit the defendant to withdraw his plea of guilty ( cf. People v. Selikoff, 35 N.Y.2d 227, 360 N.Y.S.2d 623, 318 N.E.2d 784;People v. Sosa–Rodriguez, 63 A.D.3d 861, 880 N.Y.S.2d 709;People v. Nash, 48 A.D.3d 705, 852 N.Y.S.2d 310).