                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 29, 2016                   107497
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

MICHAEL KATSAFAROS,
                    Appellant.
________________________________


Calendar Date:   November 22, 2016

Before:   Garry, J.P., Egan Jr., Rose, Clark and Mulvey, JJ.

                             __________


     Alexander W. Bloomstein, Hillsdale, for appellant.

      Paul Czajka, District Attorney, Hudson (Trevor O. Flike of
counsel), for respondent.

                             __________


Garry, J.P.

      Appeal from a judgment of the County Court of Columbia
County (Koweek, J.), rendered May 6, 2014, convicting defendant
upon his plea of guilty of the crime of rape in the second
degree.

      Defendant, then 62 years old, pleaded guilty to the sole
count of an indictment charging him with rape in the second
degree and admitted that he had sexual intercourse with a person
who was under the age of 15. A waiver of appeal was set forth as
a term of the plea agreement during the allocution, and defendant
signed a written plea document that included a qualified waiver
of appeal. The People agreed not to make a sentencing
recommendation; however, County Court orally advised defendant
that the maximum potential punishment would be a prison term of
                              -2-                107497

seven years followed by three years of postrelease supervision,
and this statement was repeated in the written document.
Defendant was thereafter sentenced to a prison term of five years
with 10 years of postrelease supervision. Defendant appeals.

      County Court failed to adequately distinguish the right to
appeal from those rights that are automatically forfeited upon a
guilty plea, thus rendering defendant's appeal waiver invalid
(see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v
Lopez, 6 NY3d 248, 256 [2006]). Moreover, as the People concede,
defendant retained the right to appeal from his sentence, as the
plea document provided that he had that right if his sentence was
not jointly recommended (see People v Gonzalez, 97 AD3d 985, 985
[2012]).

      Defendant contends that the sentence was harsh and
excessive. In view of the serious nature of defendant's crime,
however, we find no extraordinary circumstances or abuse of
discretion warranting a modification of the prison term in the
interest of justice (see People v Rought, 90 AD3d 1247, 1249
[2011], lv denied 18 NY3d 962 [2012]; People v Davis, 72 AD3d
1274, 1276 [2010]).

      There is, however, a separate issue relative to the term of
postrelease supervision. Defendant's guilty plea was, in part,
induced by County Court's specific statement that the period of
postrelease supervision would not exceed three years. Without
explanation, the court subsequently imposed a 10-year period of
postrelease supervision. That period was within the authorized
range for defendant's offense (see Penal Law §§ 70.02 [1] [c];
70.45 [2-a] [d]; 70.80 [a]), but nothing in the record suggests
that the previously stated shorter period had become improvident
as a result of changed circumstances or new information (cf.
People v Selikoff, 35 NY2d 227, 240 [1974], cert denied 419 US
1122 [1975]). Defendant was not given an opportunity to withdraw
his plea before his sentence was imposed, did not move to
withdraw his plea, and has represented to this Court that he does
not wish to do so. Under these circumstances, we find that
County Court is bound by its prior statement and that defendant
is entitled to specific performance of the plea agreement (see
People v Carner, 142 AD2d 789, 790 [1988], lv denied 72 NY2d 955
                              -3-                  107497

[1988]). As the error was not preserved, we exercise our
interest of justice jurisdiction to reduce the period of
postrelease supervision to three years (see People v Vinson, 73
AD3d 590, 590 [2010], lv denied 15 NY3d 810 [2010]; People v
Bradshaw, 271 AD2d 63, 71 [2000], lv denied 95 NY2d 967 [2000];
People v Jones, 99 AD2d 1, 3 [1984]).

     Egan Jr., Rose, Clark and Mulvey, JJ., concur.



      ORDERED that the judgment is modified, as a matter of
discretion in the interest of justice, by reducing the period of
postrelease supervision to three years, and, as so modified,
affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
