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

201
KA 11-01989
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RAYMOND E. ALLARD, DEFENDANT-APPELLANT.


JOSEPH T. JARZEMBEK, BUFFALO, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered September 6, 2011. The judgment convicted
defendant, upon his plea of guilty, of rape in the second degree (two
counts).

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

     Memorandum: On appeal from a judgment convicting him, following
his plea of guilty, of two counts of rape in the second degree (Penal
Law § 130.30 [1]), defendant contends that County Court erred in its
“determination” that he is a “sex offender.” We reject that
contention. The Correction Law requires that a defendant convicted
under Penal Law § 130.30 be classified as a sex offender (see
Correction Law § 168-a [2] [a] [i]). Defendant’s reliance on People v
Allen (64 AD3d 1190, 1191, lv denied 13 NY3d 794) is misplaced.
Unlike here, the defendant in Allen was convicted under, inter alia,
Penal Law § 250.45 (3) (a). The Correction Law does not require that
a defendant convicted under that section of the Penal Law be
classified as a sex offender if, upon a motion by the defendant, the
sentencing court determines that such a classification would be
“unduly harsh and inappropriate” (Correction Law § 168-a [2] [e]).
Finally, although not raised by defendant, we conclude that the 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 (see People v Kennedy, 78 AD3d 1477, 1479, lv denied 16
NY3d 798). Because we cannot allow an illegal sentence to stand (see
People v Davis, 37 AD3d 1179, 1180, lv denied 8 NY3d 983), we modify
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                                           KA 11-01989

the judgment accordingly.




Entered:   June 7, 2013           Frances E. Cafarell
                                  Clerk of the Court
