         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1364
KA 10-00551
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SHAMEL X. SMITH, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C.
AZZARELLI OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered June 9, 2009. The judgment
convicted defendant, upon his plea of guilty, of criminal sale of a
controlled substance in the third degree (three counts), criminal
possession of a controlled substance in the third degree (four
counts), criminal possession of a controlled substance in the fourth
degree and unlawful possession of marihuana.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice by reducing the period of postrelease supervision imposed on
each count to a period of one year and as modified the judgment is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of, inter alia, three counts of criminal sale
of a controlled substance in the third degree (Penal Law § 220.39 [1])
and four counts of criminal possession of a controlled substance in
the third degree (§ 220.16 [1]). As part of the plea agreement,
Supreme Court stated that it would sentence defendant to concurrent
five-year terms of imprisonment with a one-year period of postrelease
supervision. We agree with defendant that the court erred in
enhancing the sentence by imposing a 1½-year period of postrelease
supervision that was not included in the plea agreement (see generally
People v Pickett, 90 AD3d 1526, 1527). Although defendant failed to
preserve his contention for our review “because [he] did not object to
the enhanced sentence, nor did he move to withdraw the appeal or to
vacate the judgment of conviction” (People v Sprague, 82 AD3d 1649,
1649, lv denied 17 NY3d 801), we nevertheless exercise our power to
review it as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]). We therefore modify the judgment by reducing the
period of postrelease supervision to one year. As modified, the
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                                                   KA 10-00551

sentence is not unduly harsh or severe.




Entered:   December 21, 2012              Frances E. Cafarell
                                          Clerk of the Court
