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

378
KA 10-02190
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RAYMOND BRYANT, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Melchor E.
Castro, A.J.), rendered June 4, 2010. The judgment convicted
defendant, upon his plea of guilty, of rape 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 Monroe
County Court for further proceedings in accordance with the following
Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of rape in the first degree
(Penal Law § 130.35 [4]), as a lesser included offense of the second
count of the indictment and, in appeal No. 2, he appeals from a
judgment convicting him upon his plea of guilty of burglary in the
first degree (§ 140.30 [3]). He pleaded guilty pursuant to a plea
agreement providing that he would be sentenced as a second felony
offender to a determinate term of nine years’ incarceration with seven
years’ postrelease supervision on the rape conviction, and lesser
concurrent terms of incarceration and postrelease supervision on the
burglary conviction. County Court imposed the promised sentence, and
defendant appeals.

     Contrary to defendant’s contention, the sentence is not unduly
harsh or severe. The term of postrelease supervision imposed on the
rape charge in appeal No. 1 is illegal, however, because the minimum
period of postrelease supervision on that charge is 10 years where, as
here, defendant has a prior nonviolent felony conviction (see Penal
Law §§ 70.45 [2-a] [i]; 70.80 [9]). “It is well established that an
invalid sentence cannot be allowed to stand” (People v Swan, 158 AD2d
158, 163, lv denied 76 NY2d 991; see People v Barber, 31 AD3d 1145,
1145-1146). Thus, “[b]ecause neither the sentence pursuant to the
plea agreement nor the sentence actually imposed was authorized by law
                                 -2-                           378
                                                         KA 10-02190

for the crime of which defendant was convicted,” we modify the
judgment in appeal No. 1 by vacating the sentence and we remit the
matter to County Court “for resentencing with the opportunity for both
parties to withdraw from the plea agreement” (People v Cameron, 83
NY2d 838, 840; see People v Ignatowski, 70 AD3d 1472, 1473; People v
Martin, 278 AD2d 743, 744). Because defendant must be given the
opportunity to withdraw his plea to the rape conviction, the judgment
in appeal No. 2 is modified by vacating the sentence imposed on the
burglary conviction, and the matter is remitted to County Court for
resentencing, and to afford defendant the opportunity to withdraw his
plea to that charge if he withdraws his plea to the rape conviction
(see generally People v Hendrix, 2 AD3d 1479, 1479-1480).




Entered:   May 9, 2014                          Frances E. Cafarell
                                                Clerk of the Court
