           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

127
KA 15-00073
PRESENT: CENTRA, J.P., PERADOTTO, CURRAN, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

BARRY HOLLIS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DAVID A.
HERATY OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered November 17, 2014. The judgment convicted
defendant, upon his plea of guilty, of sexual abuse in the first
degree and rape in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that the periods of
postrelease supervision shall run concurrently, and as modified the
judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of sexual abuse in the first degree (Penal Law
§ 130.65 [3]) and rape in the second degree (§ 130.30 [1]). Contrary
to defendant’s contention, the record establishes that he knowingly,
voluntarily and intelligently waived the right to appeal (see
generally People v Lopez, 6 NY3d 248, 256), and that valid waiver
encompasses his challenge to the severity of the sentence (see
generally People v Lococo, 92 NY2d 825, 827; People v Hidalgo, 91 NY2d
733, 737). We agree with defendant, however, that County Court erred
in imposing consecutive periods of postrelease supervision. “Penal
Law § 70.45 (5) (c) requires that the periods of postrelease
supervision merge and are satisfied by the service of the longest
unexpired term” (People v Allard, 107 AD3d 1379, 1379). “Because we
cannot allow an illegal sentence to stand” (id.), we modify the
judgment accordingly.




Entered:    February 10, 2017                      Frances E. Cafarell
                                                   Clerk of the Court
