PEOPLE v. BEARD (2007)

 In appeal No. 1, defendant appeals from a judgment convicting her upon her plea of guilty of one count of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ) and, in appeal No. 2, she appeals from a judgment convicting her upon her plea of guilty of two counts of that crime.   Contrary to the contention of defendant in appeal Nos. 1 and 2, we conclude that she knowingly, intelligently, and voluntarily waived her right to appeal (see People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416;  People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108;  People v. Keiser, 38 A.D.3d 1254, 833 N.Y.S.2d 779;  People v. Lovett, 8 A.D.3d 1007, 778 N.Y.S.2d 243, lv. denied 3 N.Y.3d 673, 677, 784 N.Y.S.2d 12, 15, 817 N.E.2d 830, 833).   The valid waiver by defendant of the right to appeal precludes her from invoking our “interest-of-justice jurisdiction to reduce the sentence” (People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  see Keiser, 38 A.D.3d at 1254, 833 N.Y.S.2d 779).

 Nevertheless, the contention of defendant in appeal No. 2 that the sentence is illegal survives her waiver of the right to appeal (see Callahan, 80 N.Y.2d at 280, 590 N.Y.S.2d 46, 604 N.E.2d 108).   As the People concede, the sentencing minutes establish that County Court imposed an illegal sentence insofar as it directed that defendant serve “six years [of] post-release supervision” following the six-year determinate term of incarceration imposed on the fourth count of the indictment (see Penal Law § 70.45[2][d];  see also § 70.70[3][b][i] ).   In view of the discrepancy between the sentencing minutes and the certificate of conviction, we modify the judgment in appeal No. 2 by vacating the sentence imposed for criminal sale of a controlled substance in the third degree under count four of the indictment, and we remit the matter to County Court for resentencing on that count of the indictment (see e.g. People v. Rivera, 30 A.D.3d 1019, 1020, 815 N.Y.S.2d 860, lv. denied 7 N.Y.3d 870, 824 N.Y.S.2d 614, 857 N.E.2d 1145, 8 N.Y.3d 884, 832 N.Y.S.2d 496, 864 N.E.2d 626;  People v. Smith, 28 A.D.3d 1202, 1203-1204, 814 N.Y.S.2d 832, lv. denied 7 N.Y.3d 818, 822 N.Y.S.2d 493, 855 N.E.2d 809;  People v. Hall, 5 A.D.3d 1011, 773 N.Y.S.2d 632).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence imposed for criminal sale of a controlled substance in the third degree under count four of the indictment and as modified the judgment is affirmed, and the matter is remitted to Oneida County Court for resentencing on that count of the indictment.

MEMORANDUM: