People v Johnson

People v Johnson 2009 NY Slip Op 00439 [58 AD3d 555] January 27, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 11, 2009

The People of the State of New York, Respondent,
v
Jeremy Johnson, Appellant.

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

Robert M. Morgenthau, District Attorney, New York (Allen J. Vickey of counsel), for respondent.

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered February 26, 2007, convicting defendant, upon his plea of guilty, of attempted burglary in the second degree, and sentencing him to a term of five years followed by five years' postrelease supervision, unanimously modified, on the law, to the extent of vacating the provision for postrelease supervision and remanding for further proceedings in accordance with this decision, and otherwise affirmed. Judgment, same court and Justice, rendered September 6, 2006, as amended February 26, 2007, convicting defendant, upon his plea of guilty, of burglary in the third degree, and sentencing him to a concurrent term of 1 to 3 years, unanimously affirmed.

We perceive no basis for reducing the sentences. However, defendant is entitled to a remand for the sole purpose of imposition of a lawful period of postrelease supervision. The five-year period pronounced by the sentencing court was illegal. The correct period ranges from 1½ to 3 years (see Penal Law § 70.45 [2] [e]), and we remand to permit the sentencing court to exercise its discretion accordingly. Concur—Saxe, J.P., Gonzalez, Sweeny, Renwick and DeGrasse, JJ.