PEOPLE v. JONES

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Lemorris JONES, Defendant-Appellant.  (Appeal No. 1.)

Decided: July 01, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, GORSKI, SMITH, AND HAYES, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of Counsel), for Plaintiff-Respondent.

In appeal No. 1, defendant appeals from a judgment convicting him, upon a plea of guilty, of two counts of murder in the second degree (Penal Law § 125.25[1], [3] ), one count of robbery in the first degree (§ 160.15 [2] ), and one count of attempted robbery in the first degree (§§ 110.00, 160.15[2] ) and sentencing him to various concurrent terms of incarceration, to be followed by five years of postrelease supervision.   In appeal No. 2, defendant appeals from a judgment revoking his probation and sentencing him to a term of incarceration, to be followed by three years of postrelease supervision.   In appeal No. 3, defendant appeals from a judgment convicting him, upon a plea of guilty, of criminal possession of a weapon in the third degree (§ 265.02[4] ) and sentencing him to a term of incarceration, to be followed by five years of postrelease supervision.   County Court directed that the sentences run concurrently with each other.

We reject the contention of defendant in appeal Nos. 1 and 3 that he was illegally sentenced to postrelease supervision because the court failed to exercise its discretion pursuant to Penal Law § 70.45(2).   A five-year period of postrelease supervision is mandatory for second violent felony offenders (see id.;   see e.g. People v. Myers, 9 A.D.3d 896, 897, 779 N.Y.S.2d 389, lv. denied 3 N.Y.3d 679, 784 N.Y.S.2d 17, 817 N.E.2d 835).   The court therefore properly imposed the five-year postrelease supervision period appropriate for defendant, as a second violent felony offender, in appeal Nos. 1 and 3 (see People v. Munck, 4 A.D.3d 627, 628-629, 771 N.Y.S.2d 733, lv. denied 2 N.Y.3d 803, 781 N.Y.S.2d 302, 814 N.E.2d 474;  cf. People v. Goss, 286 A.D.2d 180, 183, 733 N.Y.S.2d 310).

Defendant's waiver of the right to appeal in appeal No. 2 was knowingly, voluntarily and intelligently made (see People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108;  People v. Seaberg, 74 N.Y.2d 1, 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022).   The sentences imposed on the respective convictions are not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: