PEOPLE v. WILLIAMS (2007)

Judgment, Supreme Court, Bronx County (John W. Carter, J.), rendered May 23, 2006, convicting defendant, upon his plea of guilty, of assault in the first degree, and sentencing him to a term of 13 years, unanimously modified, on the law, to the extent of vacating the provision for 3 years' post-release supervision and remanding for further proceedings regarding the imposition of a period of post-release supervision, and otherwise affirmed.

Defendant made a valid waiver of his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).   The record establishes that defendant clearly understood that he was making an unrestricted waiver.

 Defendant also claims that his sentence was defective in that a provision for a period of post-release supervision was contained in the court's commitment sheet but not in its oral pronouncement of sentence.   In this case, the duration of the required period of post-release supervision was within the court's discretion (see Penal Law § 70.45[1][f] ).  Although the court promised defendant a three-year period, and the court clerk included that provision on the commitment sheet, the court did not address post-release supervision at sentencing.   In these circumstances, imposition of such a term was not ministerial.   Furthermore, we conclude that imposition of a discretionary sentencing provision subsequent to the court's oral sentence is a defect that survives a waiver of the right to appeal (compare People v. Thomas, 35 A.D.3d 192, 826 N.Y.S.2d 36 [2006], lv. denied 8 N.Y.3d 850, 830 N.Y.S.2d 709, 862 N.E.2d 801 [2007] ).

Defendant's claim that the duration of an order of protection was incorrectly calculated is unreviewable on the present record (see People v. Montilla, 37 A.D.3d 281, 829 N.Y.S.2d 506 [2007] ).