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

138
KA 11-00413
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRIAN R. BUSSOM, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Daniel J. Doyle, J.), rendered November 22, 2010. The judgment
convicted defendant, upon his plea of guilty, of course of sexual
conduct against a child 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 vacating the sentence imposed on
count three of the indictment and as modified the judgment is affirmed
and the matter is remitted to Supreme Court, Monroe County, for
resentencing on that count.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of course of sexual conduct against a child in the
first degree (Penal Law § 130.75 [1] [b]) and rape in the second
degree (§ 130.30 [1]), defendant contends that the period of
postrelease supervision imposed upon the latter conviction is illegal.
It is well settled that “defendant’s challenge to the legality of the
sentence survives his waiver of the right to appeal” (People v
McLellan, 82 AD3d 1668, 1669; see People v Seaberg, 74 NY2d 1, 10),
and he may raise such a challenge for the first time on appeal (see
People v Gonzalez, 99 NY2d 76, 86). Here, as the People correctly
concede, the sentence is illegal insofar as the court imposed a
15-year period of postrelease supervision on the count of rape in the
second degree (see § 70.45 [2-a] [a]). Inasmuch as the record does
not establish that the court intended to impose the maximum period of
postrelease supervision, we modify the judgment by vacating the
sentence on count three of the indictment charging defendant with rape
in the second degree, and we remit the matter to Supreme Court for
resentencing on that count (see People v Bowden, 15 AD3d 884, 885, lv
denied 4 NY3d 851, reconsideration denied 5 NY3d 786; cf. People v
                                 -2-                          138
                                                        KA 11-00413

Roman, 43 AD3d 1282, 1283, lv denied 9 NY3d 1009).




Entered:   February 6, 2015                    Frances E. Cafarell
                                               Clerk of the Court
