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People v. Johnson

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


January 27, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JEREMY JOHNSON, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered February 26, 2007, convicting defendant, upon his plea of guilty, of attempted burglary in the second degree, and sentencing him to a term of 5 years followed by 5 years' post-release supervision, unanimously modified, on the law, to the extent of vacating the provision for post-release supervision and remanding for further proceedings in accordance with this decision, and otherwise affirmed. Judgment, same court and Justice, rendered September 6, 2006, as amended February 26, 2007, convicting defendant, upon his plea of guilty, of burglary in the third degree, and sentencing him to a concurrent term of 1 to 3 years, unanimously affirmed.

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.

Saxe, J.P., Gonzalez, Sweeny, Renwick, DeGrasse, JJ.

SCI Nos. 983/06 & 4048/06

We perceive no basis for reducing the sentences. However, defendant is entitled to a remand for the sole purpose of imposition of a lawful period of post-release supervision. The five-year period pronounced by the sentencing court was illegal. The correct period ranges from one and one-half to three years (see Penal Law § 70.45[2][e]), and we remand to permit the sentencing court to exercise its discretion accordingly.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090127

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