State of New York Supreme Court, Appellate Division Third Judicial Department
November 10, 2011
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
SHAMEL WRIGHT, APPELLANT.
The opinion of the court was delivered by: Peters, J.P.
MEMORANDUM AND ORDER
Calendar Date: October 12, 2011
Before: Peters, J.P., Lahtinen, Stein, McCarthy and Garry, JJ.
Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered October 6, 2009, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.
Defendant was charged with criminal sale of a controlled substance in the third degree. Pursuant to a plea agreement, defendant pleaded guilty to the reduced charge of attempted criminal sale of a controlled substance in the third degree. Under the terms of the plea agreement, defendant was to be sentenced to no more than four years in prison to be followed by two years of postrelease supervision. At sentencing, County Court imposed upon defendant, as a second felony offender, a sentence of four years in prison with three years of postrelease supervision. Defendant now appeals.
Inasmuch as defendant failed to object that the period of postrelease supervision imposed at sentencing did not conform to the term indicated during the plea proceeding, his claim is unpreserved for our review (see People v Young, 85 AD3d 1489, 1491 ; People v Davis, 79 AD3d 1267, 1269 , lv denied 16 NY3d 797 ). Our review of the record, however, reveals that County Court specifically expressed its intent during the sentencing proceeding to impose the sentence that was agreed upon during the plea proceeding, which included a two-year period of postrelease supervision. Given these circumstances, we will exercise our interest of justice jurisdiction (see CPL 470.15 ) and modify the sentence imposed by sentencing defendant to the agreed-upon sentence of four years in prison and two years of postrelease supervision. We note that since County Court found the agreed-upon sentence to be appropriate, defendant need not be provided an opportunity to withdraw his plea as our modification "gives effect to the promise which had originally induced defendant's plea" (People v Martin, 17 AD3d 775, 776 ).
Defendant's remaining claims have been rendered academic by our decision or examined and found to be without merit.
Lahtinen, Stein, McCarthy and Garry, JJ., concur.
ORDERED that the judgment is modified, as a matter of discretion and in the interest of justice, by vacating the sentence imposed; defendant is sentenced to four years in prison to be followed by two years of postrelease supervision; and, as so modified, affirmed.
Robert D. Mayberger
Clerk of the Court
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