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The People of the State of New York v. Morris B. Yuson

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


April 29, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
MORRIS B. YUSON,
DEFENDANT-APPELLANT.

Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered December 20, 2007.

People v Yuson

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 29, 2011

PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND GORSKI, JJ.

The judgment convicted defendant, upon his plea of guilty, of assault in the second degree.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of assault in the second degree (Penal Law § 120.05 [2]), defendant contends that his sentence is illegal because County Court imposed a five-year period of postrelease supervision. The People correctly concede that, although defendant did not preserve his contention for our review, preservation is not required inasmuch as defendant challenges the legality of his sentence (see People v Ramsey, 59 AD3d 1046, 1048, lv denied 12 NY3d 858; People v Fuentes, 52 AD3d 1297, 1300-1301, lv denied 11 NY3d 736; People v Fomby, 42 AD3d 894, 896). We nevertheless reject defendant's contention.

Defendant's plea of guilty to assault in the second degree, a class D violent felony, was in satisfaction of an indictment charging, inter alia, robbery in the first degree (Penal Law § 160.15 [4]) as an armed felony as defined in CPL 1.20 (41) (b). Consequently, defendant was sentenced pursuant to Penal Law § 70.02 (4). Inasmuch as none of the exceptions set forth in former section 70.45 (2) apply herein, the statute mandates the imposition of a five-year period of postrelease supervision (see generally People v McCants, 54 AD3d 445; People v Hanley, 43 AD3d 487; People v McQuiller, 19 AD3d 1043, 1045, lv denied 5 NY3d 808).

Entered: April 29, 2011

Patricia L. Morgan Clerk of the Court

20110429

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