PEOPLE v. JORDAN (2005)

Appeal by the defendant, as limited by his brief, from so much of a sentence of the County Court, Suffolk County (Weber, J.), rendered March 12, 2004, as, upon his conviction of assault in the second degree, upon his plea of guilty, imposed a term of five years of post-release supervision.

ORDERED that the sentence is affirmed insofar as appealed from.

Contrary to the defendant's contention, the County Court did not violate Penal Law § 70.45 by imposing a post-release supervision term of five years for his conviction of assault in the second degree.   Pursuant to Penal Law § 70.45(2), the period of post-release supervision for a determinate sentence “shall be five years, except that such period shall be three years whenever a determinate sentence is imposed pursuant to section 70.02 of this article upon a conviction for a class D or class E violent felony offense.”   Although assault in the second degree is a class D violent felony, the defendant was adjudicated a second felony offender, and thus sentenced pursuant to Penal Law § 70.06(6) rather than Penal Law § 70.02. Accordingly, the imposition of a five-year term of post-release supervision was required (see People v. Chestnut, 18 A.D.3d 965, 795 N.Y.S.2d 366;  People v. Steadman, 308 A.D.2d 415, 764 N.Y.S.2d 820;  People v. Bell, 305 A.D.2d 694, 761 N.Y.S.2d 239).