PEOPLE v. BELL

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

The PEOPLE, etc., Respondent, v. Otis BELL, Appellant.

Decided: May 27, 2003

ANITA R. FLORIO, J.P., SONDRA MILLER, GLORIA GOLDSTEIN and THOMAS A. ADAMS, JJ. Raymond E. Kerno, Mineola, NY, for appellant. Jeanine Pirro, District Attorney, White Plains, N.Y. (Thomas K. Chong and Richard Longworth Hecht of counsel), for respondent.

Appeal by the defendant, as limited by his briefs, from so much of a sentence of the Supreme Court, Westchester County (Perone, J.), rendered December 14, 2000, as, upon his conviction of robbery in the second degree, assault in the second degree, and criminal possession of stolen property in the third degree, upon his plea of guilty, imposed concurrent terms of five years post-release supervision on the conviction of robbery in the second degree and assault in the second degree.

ORDERED that the sentence is affirmed insofar as appealed from.

The defendant pleaded guilty to robbery in the second degree, assault in the second degree, and criminal possession of stolen property in the third degree in full satisfaction of a 30-count indictment, in exchange for a promised sentence of five years imprisonment.   When he appeared for sentencing, he moved for leave to withdraw his plea of guilty on the ground that he was never advised that “there was a post-release supervision as part of the mandatory sentencing structure in New York State.”   The defendant's application for leave to withdraw his plea of guilty was denied, and he was sentenced pursuant to Penal Law § 70.06 as a second-felony offender to, inter alia, concurrent terms of five years post-release supervision for robbery in the second degree and assault in the second degree.

On appeal, the defendant explicitly states that he “does not wish to vacate or to void a plea bargain that he negotiated and that had favorable terms to him.”   However, he contends that, since he was never advised of the mandatory terms of post-release supervision, the judgment of conviction should be modified to strike the post-release supervision requirement.

The defendant's claim is without merit.   A determinate sentence without the post-release supervision constitutes an illegal sentence (see Penal Law § 70.45).   Under the circumstances, the sentence must be affirmed insofar as appealed from (see People v. Yekel, 288 A.D.2d 762, 763, 733 N.Y.S.2d 643;  People v. Cass, 301 A.D.2d 681, 752 N.Y.S.2d 908).

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