People v. Nurse

42 A.D.3d 941, 837 N.Y.S.2d 885

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 6, 2007
• Status: Published

Opinion

Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered November 24, 2004. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Monroe County Court for resentencing.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]). County Court erred in sentencing defendant to a five-year period of postrelease supervision for a class D violent felony offense (see § 70.02 [1] [c]; § 70.45 [2] [e]; People v Clinkscales, 35 AD3d 1266 [2006]). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing (see People v Bowden, 15 AD3d 884 [2005], lv denied 4 NY3d 851 [2005], 5 NY3d 786 [2005]). Present — Scudder, P.J., Gorski, Smith, Fahey and Green, JJ.