People v Baez

People v Baez 2010 NY Slip Op 04933 [74 AD3d 541] June 10, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2010

The People of the State of New York, Respondent,
v
Juan Carlos Baez, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Jane Levitt of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), for respondent.

Judgment, Supreme Court, New York County (Thomas A. Farber, J.), rendered October 10, 2008, convicting defendant, upon his plea of guilty, of attempted rape in the first degree, and sentencing him to a term of nine years, with 10 years' postrelease supervision, unanimously affirmed.

Defendant challenges the term of postrelease supervision (PRS) on the ground that the crime "may" have been committed before the effective date of the legislation (Penal Law § 70.45 [2-a]) that increased the periods of PRS authorized for certain sex crimes. This is the type of unlawful-sentence claim that requires preservation because it involves a factual dispute (see People v Samms, 95 NY2d 52, 56-58 [2000]), and we decline to review this unpreserved claim in the interest of justice. As an alternative holding, we find that the indictment and plea allocution establish that the crime was completed after the statutory change. Accordingly, there was no ex post facto violation.

We perceive no basis for reducing the sentence. Concur—Tom, J.P., Andrias, Catterson, Moskowitz and Acosta, JJ.