Opinion
1156 KA 13-00424
11-13-2015
The PEOPLE of the State of New York, Respondent, v. Danzel ROLAND, Defendant–Appellant.
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.
Opinion
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of two counts of robbery in the first degree (Penal Law § 160.15 4 ), defendant contends that his waiver of the right to appeal is invalid. We need not address that contention inasmuch as the waiver would not foreclose his remaining contentions, i.e., that the plea was involuntary (see People v. Schrecengost, 273 A.D.2d 937, 937, 710 N.Y.S.2d 226, lv. denied 95 N.Y.2d 938, 721 N.Y.S.2d 614, 744 N.E.2d 150), and that the sentence is illegal (see People v. Stachnik, 101 A.D.3d 1590, 1592, 956 N.Y.S.2d 777, lv. denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538). Defendant failed to preserve for our review his contention that his plea was rendered involuntary by the statement of County Court, “without mention of the mitigating circumstances provision of Penal Law § 70.25(2–b), that his sentences were required to be consecutive” (People v. Zelaya, 253 A.D.2d 686, 686, 677 N.Y.S.2d 472, lv. denied 92 N.Y.2d 1041, 684 N.Y.S.2d 506, 707 N.E.2d 461). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.153[c] ).
We agree with defendant, however, that the court erred in imposing consecutive periods of postrelease supervision. Penal Law § 70.45(5)(c) requires that such periods merge and are satisfied by the service of the longest unexpired term (see People v. Allard, 107 A.D.3d 1379, 1379, 966 N.Y.S.2d 625). We therefore modify the judgment accordingly.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by directing that the periods of postrelease supervision imposed shall run concurrently and as modified the judgment is affirmed.