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

461
KA 06-03762
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBERT JOHNSON, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK 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 (William D.
Walsh, J.), rendered July 19, 2006. The judgment convicted defendant,
upon a jury verdict, of criminal possession of a controlled substance
in the third degree and criminal possession of a controlled substance
in the seventh 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 three years and as modified the judgment is
affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon a jury verdict of, inter alia, criminal possession
of a controlled substance in the third degree (Penal Law § 220.16 [1])
and, in appeal No. 2, he appeals from a judgment convicting him upon
his plea of guilty of criminal possession of a controlled substance in
the third degree (id.). We note at the outset that, although the
People contend that defendant failed to take an appeal from the
judgment in appeal No. 2, we exercise our discretion in the interest
of justice to treat the pro se notice of appeal in appeal No. 2 as
valid, and we thus conclude that the appeal taken from the judgment
entered upon the guilty plea is properly before us (see CPL 460.10
[6]; People v Pinckney, 197 AD2d 936).

     Defendant contends with respect to appeal No. 1 that he was
illegally stopped and searched and thus that County Court erred in
refusing to suppress the drugs seized from defendant. We reject that
contention. A police officer testified at the suppression hearing
that, while he was in an unmarked police vehicle stopped at a traffic
light at an intersection, he observed defendant walk to the driver’s
door of a parked vehicle, glance left and right, and place his hand on
                                 -2-                           461
                                                         KA 06-03762

the door handle. Defendant then walked to the passenger side of the
vehicle, glanced left and right, and returned to the driver’s side of
the vehicle, again placing his hand on the door handle. After he
glanced left and right for the third time, he then walked back to the
passenger side and reached into the vehicle through the open window.
Defendant turned around with his hands in his pockets and began to
walk away from the vehicle. The officer approached defendant and
asked him who owned that vehicle. Defendant initially responded that
he owned the vehicle, but he could produce neither the vehicle
registration nor any identification. The officer then ascertained
that the vehicle was actually registered to a woman, whereupon
defendant informed the officer that the vehicle was owned by a friend,
but he could not so much as provide even the first name of that
friend. The officer then searched defendant and found drugs in the
front pocket of his pants.

     We agree with the People that the officer had a “ ‘founded
suspicion that criminal activity [was] afoot’ ” when he approached
defendant and thus that his questioning of defendant was permissible
(People v Hollman, 79 NY2d 181, 184). Based on defendant’s responses
to those questions, the officer then had probable cause to believe
that defendant had committed a crime (see People v Thurman, 81 AD2d
548, 550). In view of the officer’s authorization to arrest defendant
at that time, the officer also was authorized to search defendant’s
person incident to a lawful arrest (see generally People v
Ralston, 303 AD2d 1014, lv denied 100 NY2d 565).

     We agree with defendant’s further contention in appeal No. 1 that
the period of five years of postrelease supervision (PRS) is illegal,
because the maximum period of PRS permitted by statute in this case is
three years (see § 70.45 [2] [d]). We therefore modify the judgment
in appeal No. 1 by reducing the period of PRS to a period of three
years (see People v Gibson, 52 AD3d 1227). Contrary to the further
contention of defendant, the sentence as modified in appeal No. 1 and
the sentence in appeal No. 2 are not unduly harsh or severe. In view
of our determination that the sentence in appeal No. 1, as modified,
is not unduly harsh or severe, we reject defendant’s contention that
the judgment in appeal No. 2 must be reversed on the ground that he
pleaded guilty in appeal No. 2 based on the promise that the sentence
in appeal No. 2 would run concurrently with the sentence in appeal No.
1 (cf. People v Fuggazzatto, 62 NY2d 862).




Entered:   April 29, 2011                       Patricia L. Morgan
                                                Clerk of the Court
