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

845
KA 11-02036
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GLENN T. ENDERLIN, DEFENDANT-APPELLANT.


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

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John L.
DeMarco, J.), rendered July 1, 2010. The judgment convicted
defendant, upon his plea of guilty, of sexual abuse in the first
degree and endangering the welfare of a child (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentences imposed on
the two counts of endangering the welfare of a child and as modified
the judgment is affirmed, and the matter is remitted to Monroe County
Court for resentencing on those counts.

     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 two counts of endangering the welfare of a child
(§ 260.10 [1]). Contrary to defendant’s contention, County Court did
not abuse its discretion in refusing to permit defendant to withdraw
the plea (see generally People v Watkins, 107 AD3d 1416, 1416-1417, lv
denied 22 NY3d 959; People v Tracy, 77 AD3d 1402, 1403, lv denied 16
NY3d 746). We note, however, that the sentencing minutes reflect that
the court sentenced defendant to time served plus a 10-year term of
probation on each count of endangering the welfare of a child, and
that term of probation is illegal (see § 65.00 [3] [b] [i]; see also §
65.00 [3]). Defendant’s failure to preserve that issue for our review
or, indeed, to raise it on appeal “is of no moment, inasmuch as we
cannot permit an illegal sentence to stand” (People v Terry, 90 AD3d
1571, 1572; see People v Moore [appeal No. 1], 78 AD3d 1658, 1658, lv
denied 17 NY3d 798). We therefore modify the judgment by vacating the
sentences imposed on the counts of endangering the welfare of a child,
and we remit the matter to County Court for resentencing on those
counts.
Entered: September 26, 2014                     Frances E. Cafarell
                                                Clerk of the Court
