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

773
KA 11-00975
PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JASON M. MEDEN, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Matthew J.
Murphy, III, J.), rendered April 12, 2011. The judgment revoked
defendant’s sentence of probation and imposed a sentence of
imprisonment.

     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
Niagara County Court for resentencing in accordance with the following
Memorandum: Defendant appeals from a judgment revoking the sentence
of probation previously imposed and convicting him of violating the
terms and conditions of his probation. He was sentenced to a
determinate term of incarceration of three years, to be followed by
three years of postrelease supervision. We reject defendant’s
challenge to the severity of the sentence, but we conclude that the
sentence imposed is illegal and cannot stand despite the failure of
either defendant or the People to raise the issue in County Court or
on appeal (see People v Davis, 37 AD3d 1179, 1180, lv denied 8 NY3d
983). Defendant pleaded guilty to attempted assault in the second
degree, a class E felony and, although he was convicted of rape in the
second degree in 2007, there is no indication in the record that he
was adjudicated a second felony offender. Defendant therefore faced
an indeterminate term of incarceration ranging from a minimum of 1 to
3 years to a maximum of 1a to 4 years (see Penal Law § 70.00 [2] [e];
[3] [b]). However, the court erroneously imposed a sentence of a
determinate term of three years. The certificate of conviction
correctly reflects that defendant was convicted of attempted assault
in the second degree but it also reflects the illegal sentence. We
therefore modify the judgment by vacating the sentence imposed, and we
                                 -2-                           773
                                                         KA 11-00975

remit the matter to County Court for resentencing.




Entered:   June 8, 2012                         Frances E. Cafarell
                                                Clerk of the Court
