PEOPLE v. ROBERT (2005)

Appeal by the People from an order of the County Court, Orange County (Berry, J.), dated December 10, 2003, denying their motion pursuant to CPL article 440 to set aside the probationary portion of the defendant's sentence of five years and to resentence him to a period of 10 years' probation.

ORDERED that the order is reversed, on the law, the motion is granted, the portion of the defendant's sentence sentencing him to a term of five years' probation is vacated, and the matter is remitted to the County Court, Orange County, for resentencing.

The defendant was convicted, as a youthful offender, of attempted sexual abuse in the first degree (Penal Law § 130.65) which is a “sexual assault” as defined in Penal Law § 65.00(3)(d).  “[T]he mandatory term of probation for a youthful offender who pleads guilty or is found guilty of a sexual assault is 10 years, not five years” (People v. Torrez, 5 A.D.3d 405, 406, 771 N.Y.S.2d 909;  see People v. Gray, 2 A.D.3d 275, 769 N.Y.S.2d 255;  People v. Andrew W., 189 Misc.2d 479, 733 N.Y.S.2d 577).   Accordingly, the portion of the defendant's sentence sentencing him to a term of five years' probation was illegal and should have been set aside (see CPL 440.40[1] ).