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People v. Toscano

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 9, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
RAFAEL TOSCANO, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Laura Ward, J.), rendered April 27, 2006, convicting defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the fifth degree, and sentencing him, as a second felony drug offender, to concurrent terms of 2 years, unanimously modified, on the law, to the extent of remanding for resentencing that will include the pronouncement of the applicable term of postrelease supervision, and otherwise 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.

Gonzalez, P.J., Tom, Sweeny, Catterson, Renwick, JJ.

SCI. 122/06

In its oral pronouncement of sentence, the court imposed a one-year period of postrelease supervision for the attempted possession conviction. That term was illegally low, and, as both sides agree, the replacement of that period with a lawful period of 11/2 years by way of the commitment sheet was ineffective under People v Sparber (10 NY3d 457 [2008]). The proper remedy is a remand for resentencing, and defendant's argument that the illegally low term should be allowed to stand is similar to arguments rejected by the Sparber court (id. at 471-472).

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

20090409

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