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

1417
KA 10-00855
PRESENT: SCUDDER, P.J., CENTRA, GREEN, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIAM TERRY, DEFENDANT-APPELLANT.


CHRISTOPHER S. BRADSTREET, ROCHESTER, FOR DEFENDANT-APPELLANT.

JOHN C. TUNNEY, DISTRICT ATTORNEY, BATH (AMANDA M. CHAFEE OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Joseph W.
Latham, J.), rendered August 12, 2009. The judgment convicted
defendant, upon his plea of guilty, of course of sexual conduct
against a child in the second degree and endangering the welfare of a
child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reducing the period of postrelease
supervision to a period of three years and as modified the judgment is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of, inter alia, course of sexual conduct
against a child in the second degree for conduct occurring between
April 2003 and August 2005 (Penal Law § 130.80 [1]). Contrary to
defendant’s contention, County Court did not err in failing sua sponte
to order a competency examination pursuant to CPL 730.30 (1).
“Although defendant stated during the plea proceeding that he was
taking medication and was being treated for a mental disability,
defendant nonetheless responded appropriately to questioning by the
court . . . and was ‘unequivocal in assuring the court that he
understood the meaning of the plea proceeding, and the implications of
his decision to accept the plea agreement’ ” (People v Yoho, 24 AD3d
1247, 1248). Further, the court had the opportunity to interact with
defendant and in fact noted on the record its observations that
defendant appeared “level and unaffected,” did not “appear
particularly nervous or distraught,” and “look[ed] pretty stable” (see
generally People v Phillips, 16 NY3d 510, 517; People v Jermain, 56
AD3d 1165, lv denied 11 NY3d 926). To the extent that defendant’s
further contention that he was denied effective assistance of counsel
survives his guilty plea (see People v Garner, 86 AD3d 955, 956), we
reject that contention (see generally People v Ford, 86 NY2d 397,
404). Finally, although we reject defendant’s challenge to the
                                 -2-                          1417
                                                         KA 10-00855

severity of the terms of incarceration imposed, we conclude that the
court erred in imposing a 10-year period of postrelease supervision
because the crime for which it was imposed, i.e., course of sexual
conduct against a child in the second degree, was committed prior to
the effective date of Penal Law § 70.45 (2-a). Defendant’s failure to
preserve that issue for our review or to raise it on appeal is of no
moment, inasmuch as we cannot permit an illegal sentence to stand (see
People v Moore [appeal No. 1], 78 AD3d 1658, lv denied 17 NY3d 798).
We therefore modify the judgment by reducing the period of postrelease
supervision to a period of three years, the maximum allowed (see
People v Smith, 63 AD3d 1625, lv denied 13 NY3d 800).




Entered:   December 23, 2011                   Frances E. Cafarell
                                               Clerk of the Court
