PEOPLE v. GIBSON (2008)

 Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the fifth degree (Penal Law § 220.31).   Defendant failed to preserve for our review his contention that County Court erred in failing to advise him of his right to a hearing concerning his alleged violations of the plea agreement prior to imposing an enhanced sentence (see generally People v. Perkins, 291 A.D.2d 925, 738 N.Y.S.2d 274, lv. denied 98 N.Y.2d 654, 745 N.Y.S.2d 512, 772 N.E.2d 615;  People v. Perry, 252 A.D.2d 990, 675 N.Y.S.2d 924, lv. denied 92 N.Y.2d 929, 680 N.Y.S.2d 470, 703 N.E.2d 282) and, in any event, that contention is without merit.   At the time of the plea, the court conditioned the sentence upon, inter alia, defendant's appearance for sentencing, and defendant subsequently failed to appear for sentencing.   We thus conclude that defendant was not entitled to a hearing before the court enhanced his sentence, based upon defendant's failure to appear for sentencing (see People v. Figgins, 87 N.Y.2d 840, 637 N.Y.S.2d 684, 661 N.E.2d 156).   To the extent that the further contention of defendant that he was denied effective assistance of counsel survives the plea and his waiver of the right to appeal (see People v. Santos, 37 A.D.3d 1141, 827 N.Y.S.2d 917, lv. denied 8 N.Y.3d 950, 836 N.Y.S.2d 560, 868 N.E.2d 243), we conclude that it lacks merit (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).

 Finally, we conclude that the sentence is illegal insofar as it includes a two-year period of postrelease supervision (see Penal Law § 70.45[2] ).  “ ‘Although [that] issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand’ ” (People v. Davis, 37 A.D.3d 1179, 1180, 829 N.Y.S.2d 791, lv. denied 8 N.Y.3d 983, 838 N.Y.S.2d 487, 869 N.E.2d 663).   We therefore modify the judgment by reducing the period of postrelease supervision to a period of one year (see People v. Ehrhardt, 292 A.D.2d 790, 738 N.Y.S.2d 922, lv. denied 98 N.Y.2d 675, 746 N.Y.S.2d 464, 774 N.E.2d 229).   The sentence as modified is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reducing the period of postrelease supervision to a period of one year and as modified the judgment is affirmed.

MEMORANDUM: