                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 12, 2017                   106889
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

NASJUAN JONES,
                    Appellant.
________________________________


Calendar Date:   November 18, 2016

Before:   Peters, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.

                             __________


     Terrence M. Kelly, Albany, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Jonathan
Catania, Law Intern), for respondent.

                             __________


Egan Jr., J.

      Appeals (1) from a judgment of the Supreme Court (Milano,
J.), rendered November 12, 2013 in Schenectady County, convicting
defendant upon his plea of guilty of the crimes of assault in the
first degree and assault in the second degree, and (2) from a
judgment of said court, rendered January 3, 2014 in Schenectady
County, which resentenced defendant on his conviction of assault
in the first degree.

      In May 2013, defendant was charged in a 13-count indictment
with various crimes – the most serious of which was attempted
murder in the second degree. Following his arraignment,
defendant was remanded to the Schenectady County Correctional
Facility to await trial. While confined to that facility,
defendant allegedly caused physical injury to a peace officer, as
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a result of which he was indicted and charged in August 2013 with
two counts of assault in the second degree. Thereafter, in
October 2013, defendant pleaded guilty to one count of assault in
the first degree (in full satisfaction of the May 2013
indictment) and one count of assault in the second degree (in
full satisfaction of the August 2013 indictment) and waived his
right to appeal. Pursuant to the terms of the plea agreement,
defendant was to be sentenced to concurrent prison terms of 15
years on the first degree assault conviction and three years on
the second degree assault conviction – with a single period of
postrelease supervision ranging between 2½ to 5 years. During
the course of the plea colloquy, Supreme Court expressly advised
defendant of the maximum terms of incarceration that he could
face and twice informed defendant of the range of postrelease
supervision that could be imposed.

      Thereafter, in November 2013, defendant appeared for
sentencing, at which time some discussion was had as to whether
defendant would be subject to two "concurrent" terms of
postrelease supervision or a single term of postrelease
supervision as to "the more serious level offense in this case."
Supreme Court, deeming this to "be a distinction without a
difference," sentenced defendant in accordance with the terms of
the plea agreement and imposed a single 3½-year term of
postrelease supervision in connection with defendant's conviction
of assault in the second degree. Both Supreme Court's commitment
order and the resulting uniform sentence and commitment orders
reflect that no period of postrelease supervision was imposed
with respect to defendant's conviction of assault in the first
degree.

      The Department of Corrections and Community Supervision
subsequently advised Supreme Court of its failure to impose a
period of postrelease supervision upon defendant's first degree
assault conviction, as the result of which defendant returned to
Supreme Court in January 2014 for resentencing. At that time,
Supreme Court advised defendant of its intention to impose a 3½-
year term of postrelease supervision in connection with
defendant's conviction of assault in the first degree, which
would run concurrently, i.e., merge, with the period of
postrelease supervision already imposed upon the assault in the
                              -3-                106889

second degree conviction. The People reiterated that the
contemplated resentencing would in no way enhance or extend the
period of postrelease supervision to which defendant already was
subject and, when questioned by Supreme Court as to whether such
resentencing would "in any way change any of [his] answers to the
plea colloquy," defendant replied, "No, your honor" and indicated
that he wished to proceed with resentencing. To that end,
Supreme Court resentenced defendant to 15 years in prison for
assault in the first degree – followed by 3½ years of postrelease
supervision. The amended uniform sentence and commitment order,
however, erroneously indicated that defendant would be subject to
only three years of postrelease supervision in connection with
his conviction of assault in the first degree. Defendant now
appeals, primarily contending that the subject pleas must be
vacated.

      To the extent that defendant's brief may be read as
challenging the legality and/or voluntariness of his guilty plea,
although this issue survives defendant's uncontested waiver of
the right to appeal, it is unpreserved for our review in the
absence of an appropriate postallocution motion (see People v
Williams, 27 NY3d 212, 221-222 [2016]; People v Terenzi, 57 AD3d
1228, 1229 [2008], lv denied 12 NY3d 822 [2009]). Notably,
"defendant was made aware that he would be subject to a period of
postrelease supervision at the outset of the resentencing
proceeding, and nonetheless failed to move to withdraw his plea
prior to the imposition of the resentence" (People v Ullah, 130
AD3d 759, 760 [2015], lv denied 26 NY3d 1043 [2015]). Moreover,
the record reflects that, once defendant was confronted with
Supreme Court's initial failure to impose a period of postrelease
supervision upon the assault in the first degree conviction,
Supreme Court expressly asked defendant whether he was willing
"to stand by that conviction and that plea" and to proceed with
resentencing, to which defendant replied, "Yes." Accordingly, we
decline to exercise our interest of justice jurisdiction to take
corrective action on this point.

      Nor are we persuaded that defendant is entitled to vacatur
of his plea under People v Catu (4 NY3d 242 [2005]) and its
progeny (see e.g. People v Turner, 24 NY3d 254 [2014]; People v
Louree, 8 NY3d 541 [2007]), as this simply is not a case where
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the sentencing court utterly failed to apprise a criminal
defendant that he or she would be subject to a period of
postrelease supervision and/or neglected to specify the promised
or potential duration thereof (compare People v Meyers, 73 AD3d
1231, 1231 [2010]). To the contrary, a review of defendant's
plea colloquy makes clear that he was aware that he would be
subject to a period of postrelease supervision and, further, that
he was specifically advised as to the range of postrelease
supervision (2½ to 5 years) that could be imposed (see People v
Garcia, 89 AD3d 1325, 1326 [2011], lvs denied 18 NY3d 923, 924
[2012]) – facts that are in no way altered by Supreme Court's and
counsels' mistaken belief that the court could impose a single
term of postrelease supervision instead of two separate but
concurrent terms of postrelease supervision upon the assault in
the first degree and assault in the second degree convictions.
Moreover, although the term of postrelease supervision imposed
upon the assault in the second degree conviction (3½ years)
indeed exceeded the statutory maximum of three years (see Penal
Law §§ 70.45 [2] [e]; 120.05 [7]), an issue that we will address
separately, this is not a case where a defendant was promised a
lesser term and received a greater term (compare People v Bryant,
117 AD3d 1551, 1551-1552 [2014]; People v Miller, 62 AD3d 1047,
1048 [2009]). Hence, it cannot be said that defendant failed to
reap the benefit of his bargain.

      That said, there indeed are errors as to the postrelease
supervision components of the respective sentences – both with
respect to the term of postrelease supervision actually imposed
upon defendant's conviction of assault in the second degree and
as to the term of postrelease supervision reflected on the
uniform sentence and commitment orders relative to defendant's
conviction of assault in the first degree. Specifically, as
noted previously, the maximum period of postrelease supervision
that may be imposed upon defendant's conviction of assault in the
second degree is three years, not 3½ years (see Penal Law
§§ 70.45 [2] [e]; 120.05 [7]), and the term of postrelease
supervision actually imposed by Supreme Court with respect to
defendant's conviction of assault in the first degree was 3½
years, not three years as reflected on the amended uniform
sentence and commitment order. As a result, the period of
postrelease supervision imposed upon the assault in the first
                                -5-                106889

degree conviction is inaccurately reflected on the amended
uniform sentence and commitment order, and the period of
postrelease supervision imposed upon the assault in the second
degree conviction is illegal. Accordingly, the postrelease
supervision component of the sentence imposed upon defendant's
conviction of assault in the second degree is vacated, and this
matter is remitted to Supreme Court for the imposition of an
appropriate period of postrelease supervision as to that
conviction1 and, further, for the entry of a second amended
uniform sentence and commitment form to accurately reflect the 3½
years of postrelease supervision properly imposed upon
defendant's conviction of assault in the first degree.

        Peters, P.J., McCarthy, Lynch and Devine, JJ., concur.




    1
        While this Court could simply reduce the period of
postrelease supervision imposed upon defendant's conviction of
assault in the second degree, we undertake such action only where
it is possible to discern what period of postrelease supervision
the sentencing court would have imposed (see e.g. People v
Bussom, 125 AD3d 1331, 1332 [2015]; People v Guay, 72 AD3d 1201,
1205 [2010], affd 18 NY3d 16 [2011]). Here, Supreme Court
expressly indicated that it did not intend to impose the maximum
period of postrelease supervision. Hence, we deem it appropriate
to remit this matter to Supreme Court for resentencing as to the
period of postrelease supervision to be imposed upon defendant's
conviction of assault in the second degree (see e.g. People v
Boula, 106 AD3d 1371, 1373 [2013], lv denied 21 NY3d 1040 [2013];
People v McCoy, 100 AD3d 1422, 1423 [2012]) – notwithstanding the
fact that said period will merge with the 3½ years of postrelease
supervision imposed upon defendant's conviction of assault in the
first degree (see Penal Law § 70.45 [5] [c]).
                              -6-                  106889

      ORDERED that the judgment entered November 12, 2013 is
modified, on the law, by vacating the period of postrelease
supervision imposed upon defendant's conviction of assault in the
second degree; matter remitted to the Supreme Court for further
proceedings not inconsistent with this Court's decision; and, as
so modified, affirmed.

      ORDERED that the judgment entered January 3, 2014 is
affirmed, and matter remitted for the entry of a second amended
uniform sentence and commitment form.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
