PEOPLE v. LUCKY (2024)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Raymond Rodriguez, J.), rendered January 11, 2023, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and sentencing him to a determinate term of imprisonment of 21/212 years, to be followed by a period of postrelease supervision of 5 years.

ORDERED that the judgment is modified, on the law, on the facts, and as a matter of discretion in the interest of justice, by reducing the period of postrelease supervision imposed from 5 years to 2 years;  as so modified, the judgment is affirmed.

As the defendant contends, and as the People correctly concede, the period of postrelease supervision imposed was illegal (see Penal Law § 70.45[2][e]).  Accordingly, we modify the judgment by reducing the period of postrelease supervision imposed to the extent indicated herein (see People v. McGowan, 210 A.D.3d 909, 910, 177 N.Y.S.3d 726;  People v. Brown, 192 A.D.3d 1134, 1135, 141 N.Y.S.3d 364).

The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 340–342, 12 N.Y.S.3d 593, 34 N.E.3d 344;  People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

The defendant did not contend that the sentencing court failed to properly consider or apply the factors under the Domestic Violence Survivor Justice Act (L 2019, ch 31, § 1;  L 2019, ch 55, § 1, part WW, § 1 [eff May 14, 2019];  hereinafter the DVSJA) in sentencing him, and the defendant's valid waiver of his right to appeal precludes appellate review of his contention that the term of imprisonment imposed under the DVSJA was excessive (see People v. Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

DUFFY, J.P., MILLER, FORD and LOVE, JJ., concur.