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

435
KA 08-00834
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

MORRIS B. YUSON, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE
WOLFORD OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered December 20, 2007. The judgment convicted
defendant, upon his plea of guilty, of assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of assault in the second degree (Penal Law § 120.05
[2]), defendant contends that his sentence is illegal because County
Court imposed a five-year period of postrelease supervision. The
People correctly concede that, although defendant did not preserve his
contention for our review, preservation is not required inasmuch as
defendant challenges the legality of his sentence (see People v
Ramsey, 59 AD3d 1046, 1048, lv denied 12 NY3d 858; People v Fuentes,
52 AD3d 1297, 1300-1301, lv denied 11 NY3d 736; People v Fomby, 42
AD3d 894, 896). We nevertheless reject defendant’s contention.

     Defendant’s plea of guilty to assault in the second degree, a
class D violent felony, was in satisfaction of an indictment charging,
inter alia, robbery in the first degree (Penal Law § 160.15 [4]) as an
armed felony as defined in CPL 1.20 (41) (b). Consequently, defendant
was sentenced pursuant to Penal Law § 70.02 (4). Inasmuch as none of
the exceptions set forth in former section 70.45 (2) apply herein, the
statute mandates the imposition of a five-year period of postrelease
supervision (see generally People v McCants, 54 AD3d 445; People v
Hanley, 43 AD3d 487; People v McQuiller, 19 AD3d 1043, 1045, lv denied
5 NY3d 808).


Entered:    April 29, 2011                         Patricia L. Morgan
                                                   Clerk of the Court
