People v. Benzeno

83 A.D.3d 728, 919 N.Y.S.2d 897

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 5, 2011
• Status: Published

Opinion

Appeal by the defendant from a resentence of the County Court, Suffolk County (Braslow, J.), imposed February 4, 2010, pursuant to CPL 440.46, after a hearing, upon his conviction of criminal sale of a controlled substance in the third degree, which sentence was originally imposed, upon his plea of guilty, on April 11, 2003, the resentence being a determinate term of imprisonment of seven years and a period of postrelease supervision of three years.

Ordered that the resentence is modified, on the law, by vacating the period of postrelease supervision of three years; as so modified, the resentence is affirmed, and the matter is remitted to the County Court, Suffolk County, for the imposition of an appropriate period of postrelease supervision in accordance with Penal Law § 70.45 (2) (b).

Contrary to the defendant’s contention, the term of imprisonment imposed was not excessive (see People v Schreter, 50 AD3d 930 [2008]; People v Almanzar, 43 AD3d 825, 826 [2007]; People v Suitte, 90 AD2d 80 [1982]). However, as the People correctly concede, the three-year period of postrelease supervision imposed exceeds the statutorily authorized maximum (see Penal Law § 70.45 [2] [b]). Accordingly, we remit the matter to the County Court, Suffolk County, for the imposition of an appropriate period of postrelease supervision in accordance with Penal Law § 70.45 (2) (b). Rivera, J.P., Chambers, Hall and Lott, JJ., concur.