People v. Stanley

309 A.D.2d 1254, 767 N.Y.S.2d 712, 2003 N.Y. App. Div. LEXIS 10138

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 2, 2003
• Status: Published

Opinion

Appeal from a judgment of Erie County Court (DiTullio, J.), entered June 27, 2001, convicting defendant upon his plea of guilty of attempted assault in the first 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 Erie County Court for resentencing.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted assault in the first degree (Penal Law §§ 110.00, 120.10 [1]) and sentencing him to a determinate term of imprisonment of nine years. The valid waiver by defendant of the right to appeal encompasses his contention that the sentence is unduly harsh and severe (see People v Hidalgo, 91 NY2d 733, 737 [1998]). That waiver, however, does not encompass defendant’s contention that County Court was unaware of the extent of its discretion with respect to the imposition of a period of postrelease supervision. Although there is no requirement that the court specify a period of postrelease supervision (see People v Bloom, 269 AD2d 838 [2000], lv denied 94 NY2d 945 [2000]), the court “may specify a shorter period of post-release supervision of not less than two and one-half years upon a conviction [of] a * * * class C violent felony offense” (§ 70.45 [2]). Here, the court stated that it was not “[its] place to address” defendant’s request for a period of postrelease supervision of less than five years, “thereby indicating ‘the court’s misapprehension that it had no ability to exercise its discretion’ ” in determining whether to impose a shorter period of postrelease supervision (People v John, 288 AD2d 848, 850 [2001], lv denied 97 NY2d 705 [2001]; see People v Fehr, 303 AD2d 1039, 1040 [2003]). We therefore modify the judgment by vacating the sentence, and we remit the matter to Erie County Court for resentencing (see Fehr, 303 AD2d at 1040; John, 288 AD2d at 850). Present — Pigott, Jr., P.J., Green, Scudder, Gorski and Hayes, JJ.