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

289
KA 12-00707
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

LAMAR DAVIS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered July 10, 2008. The judgment convicted
defendant, upon his plea of guilty, of robbery 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 Erie
County Court for resentencing.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of robbery in the first degree (Penal Law § 160.15
[4]), defendant contends that County Court failed to apprehend the
extent of its sentencing discretion. We agree. Contrary to the
People’s contention, defendant’s contention survives his waiver of the
right to appeal and does not require preservation (see People v
Dunham, 83 AD3d 1423, 1424-1425, lv denied 17 NY3d 794). The court
informed defendant during the plea proceeding that the minimum
sentence it could impose was 5 years of incarceration and 5 years of
postrelease supervision, when in fact the court had the authority to
impose a period of postrelease supervision of between 2½ years and 5
years (see § 70.45 [2] [f]). “The failure of the court to apprehend
the extent of its discretion deprived defendant of the right to be
sentenced as provided by law” (People v Hager, 213 AD2d 1008, 1008;
see People v Slattery, 81 AD3d 1415, 1416). We therefore modify the
judgment by vacating the sentence, and we remit the matter to County
Court for resentencing.




Entered:    March 21, 2014                         Frances E. Cafarell
                                                   Clerk of the Court
