PEOPLE v. JENKINS (2007)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Glenn JENKINS, Defendant-Appellant.

Decided: December 20, 2007

LIPPMAN, P.J., MAZZARELLI, SAXE, WILLIAMS, BUCKLEY, JJ.

Robert S. Dean, Center for Appellate Litigation, New York (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 post-release 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 post-release 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.

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