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

1156
KA 13-00424
PRESENT: SCUDDER, P.J., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DANZEL ROLAND, DEFENDANT-APPELLANT.


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Kenneth F. Case,
J.), rendered February 15, 2013. The judgment convicted defendant,
upon his plea of guilty, of robbery in the first degree (two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that the periods of
postrelease supervision imposed shall run concurrently and as modified
the judgment is affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of two counts of robbery in the first degree (Penal Law
§ 160.15 [4]), defendant contends that his waiver of the right to
appeal is invalid. We need not address that contention inasmuch as
the waiver would not foreclose his remaining contentions, i.e., that
the plea was involuntary (see People v Schrecengost, 273 AD2d 937,
937, lv denied 95 NY2d 938), and that the sentence is illegal (see
People v Stachnik, 101 AD3d 1590, 1592, lv denied 20 NY3d 1104).
Defendant failed to preserve for our review his contention that his
plea was rendered involuntary by the statement of County Court,
“without mention of the mitigating circumstances provision of Penal
Law § 70.25 (2-b), that his sentences were required to be consecutive”
(People v Zelaya, 253 AD2d 686, 686, lv denied 92 NY2d 1041). We
decline to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [3] [c]).

     We agree with defendant, however, that the court erred in
imposing consecutive periods of postrelease supervision. Penal Law §
70.45 (5) (c) requires that such periods merge and are satisfied by
the service of the longest unexpired term (see People v Allard, 107
                                  -2-                          1156
                                                          KA 13-00424

AD3d 1379, 1379).   We therefore modify the judgment accordingly.




Entered:   November 13, 2015                     Frances E. Cafarell
                                                 Clerk of the Court
