The People, etc., respondent, v. Frederick Benzeno, appellant. (2011)

Submitted—March 15, 2011

DECISION & ORDER

Appeal by the defendant from a resentence of the County Court, Suffolk County (Braslow, J.), imposed February 4, 2010, pursuant to CPL 440.46, after a hearing, upon his conviction of criminal sale of a controlled substance in the third degree, which sentence was originally imposed, upon his plea of guilty, on April 11, 2003, the resentence being a determinate term of imprisonment of seven years and a period of postrelease supervision of three years.

ORDERED that the resentence is modified, on the law, by vacating the period of postrelease supervision of three years;  as so modified, the resentence is affirmed, and the matter is remitted to the County Court, Suffolk County, for the imposition of an appropriate period of postrelease supervision in accordance with Penal Law § 70.45(2)(b).

Contrary to the defendant's contention, the term of imprisonment imposed was not excessive (see People v. Schreter, 50 AD3d 930;  People v. Almanzar, 43 AD3d 825, 826;  People v. Suitte, 90 A.D.2d 80).   However, as the People correctly concede, the three-year period of postrelease supervision imposed exceeds the statutorily authorized maximum (see Penal Law § 70.45[2][b] ).  Accordingly, we remit the matter to the County Court, Suffolk County, for the imposition of an appropriate period of postrelease supervision in accordance with Penal Law § 70.45(2)(b).

RIVERA, J.P., CHAMBERS, HALL and LOTT, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court