PEOPLE v. BRILL

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

The PEOPLE of the State of New York, Respondent, v. Gary BRILL, Appellant.

Decided: July 26, 2007

Before:  CARDONA, P.J., PETERS, SPAIN, CARPINELLO and KANE, JJ. Sandra M. Colatosti, Albany, for appellant. Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), for respondent.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered September 14, 2005, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the third degree, criminal possession of marihuana in the third degree and aggravated unlicensed operation of a motor vehicle in the third degree.

Resolving a seven-count indictment, defendant pleaded guilty to criminal possession of a controlled substance in the third degree, criminal possession of marihuana in the third degree and aggravated unlicensed operation of a motor vehicle in the third degree.   County Court sentenced defendant to five years in prison and two years of postrelease supervision for criminal possession of a controlled substance, 1 1/212 years in prison and two years of postrelease supervision for criminal possession of marihuana, and 30 days incarceration for aggravated unlicensed operation of a motor vehicle, with all sentences to run concurrently.   Defendant appeals.

Defendant's challenge to the voluntariness of his guilty plea is unpreserved for our review in light of his failure to move to withdraw the plea or vacate the judgment of conviction (see People v. Hernandez, 21 A.D.3d 1214, 1215, 801 N.Y.S.2d 167 [2005], lv. denied 5 N.Y.3d 883, 808 N.Y.S.2d 585, 842 N.E.2d 483 [2005];  People v. Daniels, 16 A.D.3d 780, 780, 790 N.Y.S.2d 759 [2005] ).   The sentences, all within the permissible statutory ranges, are not harsh or excessive under the circumstances.   With respect to defendant's allegation that a portion of his sentence is illegal, the People concede, and we agree, that the period of postrelease supervision relative to defendant's conviction for criminal possession of marihuana, a class E felony (see Penal Law § 221.20), should have been only one year (see Penal Law § 70.45[2] [a] ).

ORDERED that the judgment is modified, on the law, by reversing so much thereof as imposed upon defendant a two-year period of postrelease supervision in connection with his conviction of criminal possession of marihuana in the third degree;  a one-year period of postrelease supervision is imposed in connection with said conviction;  and, as so modified, affirmed.

KANE, J.

CARDONA, P.J., PETERS, SPAIN and CARPINELLO, JJ., concur.

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