People v. Hollenbach

Jul 3, 2003
Versions:307 A.D.2d 776
762 N.Y.S.2d 860
2003 N.Y. App. Div. LEXIS 7942

Appeal from a judgment of Ontario County Court (Harvey, J.), entered September 12, 2001, convicting defendant upon his plea of guilty of, inter alia, burglary in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the second degree (Penal Law § 140.25 [2]) and petit larceny (§ 155.25). Defendant did not move to withdraw his guilty plea or vacate the judgment of conviction and thus failed to preserve for our review his contention that the plea was not knowingly and voluntarily entered because County Court failed to advise him at the time of the plea that he would be subject to a period of post-release supervision (see People v Shumway, 295 AD2d 916, 917 [2002]; People v Minter, 295 AD2d 927 [2002], lv denied 98 NY2d 712 [2002]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see People v Crump, 302 AD2d 901 [2003]; People v White, 296 AD2d 867 [2002], lv denied 99 NY2d 540 [2002]). We reject defendant’s further contention that the judgment of conviction should be vacated because the court failed to specify a period of postrelease supervision at sentencing. “Postrelease supervision is mandatory for determinate sentences and is automatically included in the sentence” (White, 296 AD2d at 867). Because Penal Law § 70.45 (2) provides that the period of postrelease supervision on a conviction of a class C violent felony offense is five years, “unless the court specifies a shorter period,” there is no need for the court to specify a period of post-release supervision at sentencing (see Crump, 302 AD2d at 902; People v Bloom, 269 AD2d 838 [2000], lv denied 94 NY2d 945 [2000]). The sentence is neither unduly harsh nor severe. Present — Pigott, Jr., P.J., Green, Gorski, Lawton and Hayes, JJ.