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

552
KA 10-01380
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JOE SEYMOUR, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered October 6, 2009. The judgment convicted
defendant, upon his plea of guilty, of criminal sexual act in the
first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence and as
modified the judgment is affirmed, and the matter is remitted to
Onondaga County Court for further proceedings in accordance with the
following Memorandum: On appeal from a judgment convicting him, upon
his guilty plea, of criminal sexual act in the first degree (Penal Law
§ 130.50 [4]), defendant contends that his agreed upon sentence is
illegal and that he must therefore be afforded the opportunity to
withdraw his plea. We agree. Pursuant to the plea agreement, County
Court sentenced defendant as a second violent felony offender to a
determinate term of imprisonment of 12 years to be followed by a
period of five years of postrelease supervision (PRS). As the People
correctly concede, that sentence is illegal because the minimum period
of PRS that could be imposed on defendant, as a second violent felony
offender, is 10 years (see Penal Law § 70.45 [2-a] [i]). Thus, under
the circumstances presented here, we modify the judgment by vacating
the sentence, and we remit the matter to County Court to afford
defendant the opportunity to withdraw his plea or be resentenced to a
legal period of PRS (see People v Lee, 64 AD3d 1236, 1237; see also
People v Griffin, 72 AD3d 1496, 1497; People v Motley [appeal No. 3],
56 AD3d 1158, 1159).




Entered:    June 14, 2013                          Frances E. Cafarell
                                                   Clerk of the Court
