People v Jenkins

People v Jenkins 2007 NY Slip Op 09119 [45 AD3d 448] November 20, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

The People of the State of New York, Respondent,
v
David Jenkins, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York City (William A. Loeb of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Jessica Slutsky of counsel), for respondent. Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered October 17, 2006, convicting defendant, upon his plea of guilty, of sodomy in the first degree, and sentencing him, as a second violent felony offender, to a term of 10 years, unanimously modified, on the law, to the extent of deleting the provision for postrelease supervision, and otherwise affirmed.

As the People concede, since defendant committed this crime prior to the effective date of Penal Law § 70.45, which provides for postrelease supervision, his sentence is unlawful to the extent indicated. The court's allegedly premature designation of defendant as a "predicate" sex offender, was mere surplusage of no legal significance, and defendant's arguments on this issue are without merit. We perceive no basis for reducing the sentence. Concur—Andrias, J.P., Nardelli, Gonzalez, Sweeny and Malone, JJ.