People v. Rowlett

29 A.D.3d 922, 815 N.Y.S.2d 707

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 2006
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Suffolk County (Gazzillo, J.), rendered May 11, 2005, convicting him of robbery in the third degree, upon his plea of guilty, and sentencing him to a determinate term of 7 years imprisonment with 5 years post-release supervision.

Ordered that the judgment is modified, on the law, by vacating the sentence of a determinate term of 7 years imprisonment with 5 years postrelease supervision and substituting therefor a sentence of an indeterminate term of 3V2 to 7 years imprisonment; as so modified, the judgment is affirmed.

As the People concede, the sentence imposed, a determinate term of 7 years imprisonment with 5 years post-release supervision, was illegal for the defendant’s conviction, as a second felony offender, of robbery in the third degree, a nonviolent class D felony (see Penal Law §§ 160.05, 70.02 [1] [c]; § 70.06 [2]; § 70.45; People v McKay, 10 AD3d 734 [2004]). The maximum term of imprisonment that may be imposed upon a second felony offender for a conviction of robbery in the third degree is an indeterminate term of 3x/2 to 7 years, and post-release supervision is only authorized for determinate sentences (see Penal Law § 70.06 [3] [d]; [4] [b]; § 70.45). The People request that we vacate the defendant’s plea, but that remedy is beyond our power, where, as here, the defendant objects (see Matter of Kisloff v Covington, 73 NY2d 445, 452 [1989]; Matter of Campbell v Pesce, 60 NY2d 165, 169 [1983]). Crane, J.P., Goldstein, Luciano and Dillon, JJ., concur.