People v Branch

[*1] People v Branch 2006 NY Slip Op 52337(U) [13 Misc 3d 1244(A)] Decided on December 1, 2006 Supreme Court, Kings County McKay, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 15, 2006; it will not be published in the printed Official Reports.

Decided on December 1, 2006
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Deshawn Branch A/K/A DESHAWN BRANCH - EL, DEFENDANT.



01963-2005

Joseph Kevin McKay, J.

Defendant has served and filed a pro se CPL 440 motion dated November 20, 2006, claiming his sentence was illegal in two ways: (1) his

determinate sentence of two years should have been an indeterminate sentence;

(2) his post release supervision period of five years should have been a shorter period. For the reasons explained below, the motion is summarily denied.

On July 7, 2005 defendant pled guilty to attempted criminal possession of a weapon in the third degree (Penal Law 110/265.02 [4]). He was sentenced on October 13, 2005 a two year determinate sentence as a second felony offender pursuant to Penal law § 70.06, and five years post-release supervision.

Defendant's present claims rest on the mistaken propositions

that, (1) his conviction was a non-violent felony and (2) that he was sentenced under Penal Law 70.02, entitling him to a post-release supervision period less than

five years. He is wrong on both counts.

First, his conviction is an E violent felony, according to Penal Law 70.02 (1) (d), thereby requiring a determinate , not an indeterminate, sentence. Second, Penal Law 70.45 (2) provides that the period of post-release supervision shall be five years, with certain exceptions not applicable here for sentences imposed pursuant to Penal Law 70.02. Because defendant had a prior non-violent felony conviction, and was adjudicated as a second felony offender, he had to be sentenced pursuant to Penal Law 70.06, which mandates the five year period of post-release supervision.

Accordingly, this motion must be and hereby is DENIED in all respects.

The Clerk of the Court is directed to provide a copy of this Decision and Order by ordinary mail, first class, to defendant DeShawn S. Branch,

DIN No.05-A-5402, Bare Hill Correctional Facility, Caller Box 20, 181 Branch Road, Malone, New York 12953 and to the Kings County District Attorney's [*2]Office, 350 Jay Street, Brooklyn, NY 11201.

IT IS SO ORDERED.

E N T E R,

Joseph Kevin McKay