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People v. Allen

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


December 31, 2008

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
TAWYNA P. ALLEN, DEFENDANT-APPELLANT.

Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered April 24, 2007. The judgment convicted defendant, upon her plea of guilty, of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree.

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.

PRESENT: HURLBUTT, J.P., CENTRA, FAHEY, PINE, AND GORSKI, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence imposed for criminal possession of a controlled substance in the fourth degree and as modified the judgment is affirmed, and the matter is remitted to Ontario County Court for resentencing on count three of the indictment.

Memorandum

Defendant appeals from a judgment convicting her, upon her plea of guilty, of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]), criminal possession of a controlled substance in the third degree (§ 220.16 [1]) and criminal possession of a controlled substance in the fourth degree (§ 220.09 [1]). We reject defendant's contention that the sentences imposed on the counts of criminal sale and criminal possession of a controlled substance in the third degree are unduly harsh and severe. "Defendant was sentenced in accordance with the plea bargain and should be bound by its terms" (People v McGovern, 265 AD2d 881, lv denied 94 NY2d 882).

We further conclude, however, that the sentence imposed on the count of criminal possession of a controlled substance in the fourth degree is illegal and cannot stand. We note that, because the sentence is illegal, we reach this issue despite defendant's failure to raise it either at the time of sentencing or on appeal (see People v Adams, 45 AD3d 1346; People v Martinez, 213 AD2d 1072). Pursuant to Penal Law § 70.70 (3) (b), the sentence imposed for a second felony drug offender convicted of, inter alia, a class C felony offense must include a period of not less than 11/2 or more than 3 years of postrelease supervision. Although criminal possession of a controlled substance in the fourth degree is a class C felony and defendant was a second felony drug offender, County Court failed to include a period of postrelease supervision in sentencing defendant on that count. We therefore modify the judgment by vacating the sentence imposed for criminal possession of a controlled substance in the fourth degree, and we remit the matter to County Court for resentencing on count three of the indictment (see People v Sparber, 10 NY3d 457, 469). Inasmuch as the plea agreement provided in relevant part that defendant would be sentenced to a three-year period of postrelease supervision, defendant need not be afforded the opportunity to withdraw her plea of guilty prior to resentencing (cf. People v Waggoner, 53 AD3d 1143).

20081231

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