Opinion
2014-10-3
The PEOPLE of the State of New York, Respondent, v. Cleveland SESSONS, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, WHALEN, and DeJOSEPH, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a guilty plea to assault in the second degree (Penal Law § 120.05[2] ) and sentencing him to a three-year determinate term of imprisonment followed by a five-year term of postrelease supervision.
We conclude that the sentence is illegal insofar as it imposes a five-year period of postrelease supervision for a class D violent felony ( seePenal Law §§ 70.02[c]; 70.45[2][e] ). “Although [that] issue was not raised before the [sentencing] court ..., we cannot allow an [illegal] sentence to stand” (People v. Hughes, 112 A.D.3d 1380, 1381, 977 N.Y.S.2d 841 [internal quotation marks omitted] ). We therefore modify the judgment by reducing the period of postrelease supervision to a period of 1 1/2 years.
We have considered defendant's remaining contentions and conclude that they are moot in light of our determination ( see People v. Swanson, 43 A.D.3d 1331, 1332, 844 N.Y.S.2d 521, lv. denied9 N.Y.3d 1010, 850 N.Y.S.2d 398, 880 N.E.2d 884).
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reducing the period of postrelease supervision to a period of 1 1/2 years and as modified the judgment is affirmed.