PEOPLE v. ROWLETT (2006)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Gazzillo, J.), rendered May 11, 2005, convicting him of robbery in the third degree, upon his plea of guilty, and sentencing him to a determinate term of 7 years imprisonment with 5 years post-release supervision.

ORDERED that the judgment is modified, on the law, by vacating the sentence of a determinate term of 7 years imprisonment with 5 years post-release supervision and substituting therefor a sentence of an indeterminate term of 3 1/212 to 7 years imprisonment;  as so modified, the judgment is affirmed.

 As the People concede, the sentence imposed, a determinate term of 7 years imprisonment with 5 years post-release supervision, was illegal for the defendant's conviction, as a second felony offender, of robbery in the third degree, a nonviolent class D felony (see Penal Law §§ 160.05;  70.02 [1][c];  § 70.06  [2];  § 70.45;  People v. McKay, 10 A.D.3d 734, 782 N.Y.S.2d 128).   The maximum term of imprisonment that may be imposed upon a second felony offender for a conviction of robbery in the third degree is an indeterminate term of 3 1/212 to 7 years, and post-release supervision is only authorized for determinate sentences (see Penal Law §§ 70.06[3][d];  [4] [b];  70.45).   The People request that we vacate the defendant's plea, but that remedy is beyond our power, where, as here, the defendant objects (see Matter of Kisloff v. Covington, 73 N.Y.2d 445, 452, 541 N.Y.S.2d 737, 539 N.E.2d 565;  Matter of Campbell v. Pesce, 60 N.Y.2d 165, 169, 468 N.Y.S.2d 865, 456 N.E.2d 806).