PEOPLE v. DePERNO

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The PEOPLE of the State of New York, Respondent, v. Daniel W. DePERNO, Appellant.

Decided: February 16, 2012

Before: MERCURE, Acting P.J., ROSE, SPAIN, MALONE JR. and McCARTHY, JJ. Mitch Kessler, Cohoes, for appellant. Mark D. Suben, District Attorney, Cortland, for respondent.

Appeal from a judgment of the County Court of Cortland County (Campbell, J.), rendered September 30, 2010, convicting defendant upon his plea of guilty of the crimes of criminal sexual act in the second degree, rape in the second degree and rape in the third degree.

In satisfaction of a 31–count indictment for various sexual crimes against the victim over the course of three years, beginning when she was 14 years old, defendant pleaded guilty in 2010 to three crimes that he had committed in 2006. In accordance with the plea agreement, County Court sentenced defendant to prison terms of 4 1/212 years followed by 10 years of postrelease supervision for his conviction of criminal sexual act in the second degree, four years followed by 10 years of postrelease supervision for his conviction of rape in the second degree, and 11/212 years followed by 10 years of postrelease supervision for his conviction of rape in the third degree, with the prison terms to run consecutively. Defendant's aggregate sentence was thus 10 years in prison followed by 10 years of postrelease supervision. Defendant appeals, addressing only his sentence.

Defendant contends, and the People concede, that the sentences imposed were illegal. A defendant must be sentenced according to the law as it existed at the time that he or she committed the offense (see People v. Sawinski, 246 A.D.2d 689, 692, 667 N.Y.S.2d 472 [1998], lv. denied 91 N.Y.2d 930, 670 N.Y.S.2d 412, 693 N.E.2d 759 [1998] ). In 2007, the Legislature categorized rape in the second degree and criminal sexual act in the second degree as violent felony offenses and enacted the felony sex offender statute (see L. 2007, ch. 7, §§ 30, 32). Because defendant committed the crimes at issue here in 2006—prior to the Legislature's amendments to the relevant statutes—the prison sentences for these crimes had to be indeterminate terms, and postrelease supervision was not authorized (see People v. Sapienza, 75 A.D.3d 768, 772–773, 904 N.Y.S.2d 568 [2010] ). We therefore vacate the illegal sentences that were imposed. As the agreed-upon sentences cannot legally be imposed, we remit to County Court for resentencing in accordance with the relevant statutes, with the opportunity for either party to withdraw from the plea agreement (see People v. Cameron, 83 N.Y.2d 838, 840, 611 N.Y.S.2d 499, 633 N.E.2d 1103 [1994]; People v. Ryan, 83 A.D.3d 1128, 1130, 920 N.Y.S.2d 806 [2011] ).

ORDERED that the judgment is modified, on the law, by vacating the sentences imposed; matter remitted to the County Court of Cortland County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.

McCARTHY, J.

MERCURE, Acting P.J., ROSE, SPAIN and MALONE, JR., JJ., concur.

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