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

274
KA 12-00547
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

DALE A. BELL, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Sheila A.
DiTullio, J.), rendered January 13, 2012. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the period of postrelease
supervision and as modified the judgment is affirmed, and the matter
is remitted to Erie County Court for further proceedings in accordance
with the following Memorandum: On this appeal by defendant from a
judgment convicting him upon his plea of guilty of criminal possession
of a weapon in the second degree (Penal Law § 265.03 [3]), the People
correctly concede that the period of postrelease supervision imposed
by County Court must be vacated because the court “misapprehended its
sentencing discretion with respect to that period” (People v Britt, 67
AD3d 1023, 1024, lv denied 14 NY3d 770; see People v Trott, 105 AD3d
1416, 1417-1418, lv denied 21 NY3d 1020; People v Wilkins, 104 AD3d
1156, 1157, lv denied 21 NY3d 1011). The record demonstrates that,
during the plea colloquy, the court informed defendant that the
minimum period of postrelease supervision for the crime to which he
pleaded guilty, a class C violent felony offense (see § 70.02 [1]
[b]), was five years when, in fact, the minimum period is 2½ years
(see § 70.45 [2] [f]). We therefore vacate the period of postrelease
supervision and remit the matter to County Court for “reconsideration
of the length of that period and the reimposition of a period of
postrelease supervision thereafter” (Britt, 67 AD3d at 1024).




Entered:   March 28, 2014                          Frances E. Cafarell
                                                   Clerk of the Court
