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

1003
KA 11-00851
PRESENT: CENTRA, J.P., FAHEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

CLEVELAND SESSONS, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered April 12, 2011. 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 modified on the law by reducing the period of postrelease
supervision to a period of 1½ years and as modified the judgment is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a guilty plea to assault in the second degree (Penal Law § 120.05
[2]) and sentencing him to a three-year determinate term of
imprisonment followed by a five-year term of postrelease supervision.

     We conclude that the sentence is illegal insofar as it imposes a
five-year period of postrelease supervision for a class D violent
felony (see Penal Law §§ 70.02 [c]; 70.45 [2] [e]). “Although [that]
issue was not raised before the [sentencing] court . . . , we cannot
allow an [illegal] sentence to stand” (People v Hughes, 112 AD3d 1380,
1381 [internal quotation marks omitted]). We therefore modify the
judgment by reducing the period of postrelease supervision to a period
of 1½ years.

     We have considered defendant’s remaining contentions and conclude
that they are moot in light of our determination (see People v
Swanson, 43 AD3d 1331, 1332, lv denied 9 NY3d 1010).




Entered:   October 3, 2014                         Frances E. Cafarell
                                                   Clerk of the Court
