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

509
KA 09-02301
PRESENT: SCUDDER, P.J., SMITH, FAHEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

JOSHUA M. PERRIN, DEFENDANT-APPELLANT.


JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JEFFREY L. TAYLOR
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered October 28, 2009. The judgment convicted
defendant, upon his plea of guilty, of criminal sale of marihuana in
the first degree, criminal possession of marihuana in the second
degree and criminal possession of marihuana in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence imposed on
count two of the indictment and imposing a sentence of a determinate
term of 2½ years on that count, to run concurrently with the sentences
imposed on counts one and three, and as modified the judgment is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of criminal sale of marihuana in the first
degree (Penal Law § 221.55), criminal possession of marihuana in the
second degree (§ 221.25) and criminal possession of marihuana in the
first degree (§ 221.30). Contrary to defendant’s contention, the
three-year determinate term of imprisonment with two years of
postrelease supervision imposed on counts one and three is not unduly
harsh or severe. Although defendant does not challenge the legality
of the sentence imposed on count two, i.e., a three-year determinate
term of imprisonment, we cannot allow that illegal sentence to stand
(see People v VanValkinburgh, 90 AD3d 1553, 1554). In the interest of
judicial economy, we exercise our inherent authority to correct the
illegal sentence (see generally People v Savery, 90 AD3d 1505, 1505).
We therefore modify the judgment by vacating the sentence imposed on
count two and imposing a sentence of a determinate term of
imprisonment of 2½ years on that count, to run concurrently with the
sentences imposed on counts one and three. Because defendant has
served the maximum term of 2½ years of imprisonment and has been
released from custody, a period of postrelease supervision may not now
be imposed on that count (see People v Williams, 14 NY3d 198, 217,
                                 -2-                    509
                                                  KA 09-02301

cert denied ___ US ___, 131 S Ct 125).




Entered:   April 27, 2012                Frances E. Cafarell
                                         Clerk of the Court
