Summary
In Hollenbach, the Fourth Department stated that "[b]ecause Penal Law § 70.45 (2) provides that the period of postrelease supervision on a conviction of a class C violent felony offense is five years, `unless the court specifies a shorter period,' there is no need for the court to specify a period of postrelease supervision at sentencing" (307 AD2d at 776 [citations omitted]).
Summary of this case from People v. HillOpinion
KA 02-01576
July 3, 2003.
Appeal from a judgment of Ontario County Court (Harvey, J.), entered September 12, 2001, convicting defendant upon his plea of guilty of, inter alia, burglary in the second degree.
DAVID M. PARKS, ITHACA, FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JEFFREY L. TAYLOR OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, GORSKI, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the second degree (Penal Law 140.25) and petit larceny (155.25). Defendant did not move to withdraw his guilty plea or vacate the judgment of conviction and thus failed to preserve for our review his contention that the plea was not knowingly and voluntarily entered because County Court failed to advise him at the time of the plea that he would be subject to a period of postrelease supervision ( see People v. Shumway, 295 A.D.2d 916, 917; People v. Minter, 295 A.D.2d 927, lv denied 98 N.Y.2d 712). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see People v. Crump, 302 A.D.2d 901; People v. White, 296 A.D.2d 867, lv denied 99 N.Y.2d 540). We reject defendant's further contention that the judgment of conviction should be vacated because the court failed to specify a period of postrelease supervision at sentencing. "Postrelease supervision is mandatory for determinate sentences and is automatically included in the sentence" ( White, 296 A.D.2d at 867). Because Penal Law 70.45(2) provides that the period of postrelease supervision on a conviction of a class C violent felony offense is five years, "unless the court specifies a shorter period," there is no need for the court to specify a period of postrelease supervision at sentencing ( see Crump, 302 A.D.2d at 902; People v. Bloom, 269 A.D.2d 838, lv denied 94 N.Y.2d 945). The sentence is neither unduly harsh nor severe.