THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. SHAMEL SMITH DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. SHAMEL X. SMITH, DEFENDANT–APPELLANT.

KA 10–00551

Decided: December 21, 2012

PRESENT:  SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ. FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C. AZZARELLI OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by reducing the period of postrelease supervision imposed on each count to a period of one year and as modified the judgment is affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, three counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ) and four counts of criminal possession of a controlled substance in the third degree (§ 220.16[1] ).   As part of the plea agreement, Supreme Court stated that it would sentence defendant to concurrent five-year terms of imprisonment with a one-year period of postrelease supervision.   We agree with defendant that the court erred in enhancing the sentence by imposing a 11/212-year period of postrelease supervision that was not included in the plea agreement (see generally People v. Pickett, 90 AD3d 1526, 1527).   Although defendant failed to preserve his contention for our review “because [he] did not object to the enhanced sentence, nor did he move to withdraw the appeal or to vacate the judgment of conviction” (People v. Sprague, 82 AD3d 1649, 1649, lv denied 17 NY3d 801), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   We therefore modify the judgment by reducing the period of postrelease supervision to one year.   As modified, the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court