Opinion
KA 01-01887
October 2, 2003.
Appeal from a judgment of Erie County Court (DiTullio, J.), entered June 27, 2001, convicting defendant upon his plea of guilty of attempted assault in the first degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JESSAMINE I. JACKSON OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (DON I. DALLY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, SCUDDER, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for resentencing.
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of attempted assault in the first degree (Penal Law 110.00, 120.10) and sentencing him to a determinate term of imprisonment of nine years. The valid waiver by defendant of the right to appeal encompasses his contention that the sentence is unduly harsh and severe ( see People v. Hidalgo, 91 N.Y.2d 733, 737). That waiver, however, does not encompass defendant's contention that County Court was unaware of the extent of its discretion with respect to the imposition of a period of postrelease supervision. Although there is no requirement that the court specify a period of postrelease supervision ( see People v. Bloom, 269 A.D.2d 838, lv denied 94 N.Y.2d 945), the court "may specify a shorter period of post-release supervision of not less than two and one-half years upon a conviction [of] a * * * class C violent felony offense" (70.45[2]). Here, the court stated that it was not "[its] place to address" defendant's request for a period of postrelease supervision of less than five years, "thereby indicating `the court's misapprehension that it had no ability to exercise its discretion'" in determining whether to impose a shorter period of postrelease supervision ( People v. John, 288 A.D.2d 848, 850, lv denied 97 N.Y.2d 705; see People v. Fehr, 303 A.D.2d 1039, 1040). We therefore modify the judgment by vacating the sentence, and we remit the matter to Erie County Court for resentencing ( see Fehr, 303 A.D.2d at 1040; John, 288 A.D.2d at 850).