THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. CLEVELAND SESSONS DEFENDANT APPELLANT (2014)

MEMORANDUM AND ORDER

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 11/212 years and as modified the judgment is affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon a guilty plea to assault in the second degree (Penal Law § 120.05[2] ) and sentencing him to a three-year determinate term of imprisonment followed by a five-year term of postrelease supervision.

We conclude that the sentence is illegal insofar as it imposes a five-year period of postrelease supervision for a class D violent felony (see Penal Law §§ 70.02[c];  70.45[2][e] ).  “Although [that] issue was not raised before the [sentencing] court ․, we cannot allow an [illegal] sentence to stand” (People v. Hughes, 112 AD3d 1380, 1381 [internal quotation marks omitted] ).   We therefore modify the judgment by reducing the period of postrelease supervision to a period of 11/212 years.

We have considered defendant's remaining contentions and conclude that they are moot in light of our determination (see People v. Swanson, 43 AD3d 1331, 1332, lv denied 9 NY3d 1010).

Frances E. Cafarell

Clerk of the Court