People v. Stephens

2018 NY Slip Op 3023

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 27, 2018
• Docket: 528 KA 15-01105
• Status: Published

Opinion

People v Stephens (2018 NY Slip Op 03023)

People v Stephens

2018 NY Slip Op 03023

Decided on April 27, 2018

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 27, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.

528 KA 15-01105

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

HAVERT STEPHENS, ALSO KNOWN AS HARVERT STEPHENS, DEFENDANT-APPELLANT. (APPEAL NO. 2.)

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Onondaga County Court (James H. Cecile, A.J.), rendered April 28, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence imposed on count two of the indictment and as modified the judgment is affirmed, and the matter is remitted to Onondaga County Court for resentencing on that count.

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and criminal possession of a controlled substance in the third degree (§ 220.16 [1]). Contrary to defendant's contention, the sentence imposed on the criminal sale count is not unduly harsh or severe. We note, however, that County Court failed to pronounce orally a period of postrelease supervision on the criminal possession count. We therefore modify the judgment by vacating the sentence imposed on count two, and we remit the matter to County Court for resentencing thereon (see People v Sparber, 10 NY3d 457, 469-470 [2008]).

Entered: April 27, 2018

Mark W. Bennett

Clerk of the Court