People v Jenkins

People v Jenkins 2007 NY Slip Op 10044 [46 AD3d 392] December 20, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

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

—[*1] Robert S. Dean, Center for Appellate Litigation, New York City (Seon Jeong Lee of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Jessica Slutsky of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J., at plea; Edward J. McLaughlin, J., at sentence), rendered July 11, 2006, convicting defendant of rape in the first degree, and sentencing him, as a second felony offender, to a term of 24 years, unanimously modified, on the law, to the extent of vacating the provision for postrelease supervision, and otherwise affirmed.

Defendant made a valid waiver of his right to appeal, which encompassed his excessive sentence claim and thus forecloses interest of justice review. In any event, were we to find that defendant did not make a valid waiver his right to appeal, we would perceive no basis for reducing the sentence.

As the People concede, since the crime was committed in 1996, before the effective date of the legislation (Penal Law § 70.45) providing for postrelease supervision, such supervision was incorrectly added to defendant's sentence. Since this issue involves the substantive illegality of the sentence, it survives defendant's waiver of his right to appeal. Concur—Lippman, P.J., Mazzarelli, Saxe, Williams and Buckley, JJ.