Saturday, January 3, 2009

Court Considers Sentencing Issue Sua Sponte, To Defendant's Detriment

In a reminder that there are real risks to appealing when a defendant received a sentence less than the law requires, the Fourth Department in People v Allen, 2008 NY Slip Op 10267 [12/21/08] held that the sentence was unlawfully short and remitted the case for resentencing. Of note, this issue was not raised by the parties:

We further conclude, however, that the sentence imposed on the count of criminal possession of a controlled substance in the fourth degree is illegal and cannot stand. We note that, because the sentence is illegal, we reach this issue despite defendant's failure to raise it either at the time of sentencing or on appeal (see People v Adams, 45 AD3d 1346; People v Martinez, 213 AD2d 1072). Pursuant to Penal Law § 70.70 (3) (b), the sentence imposed for a second felony drug offender convicted of, inter alia, a class C felony offense must include a period of not less than 1½ or more than 3 years of postrelease supervision. Although criminal possession of a controlled substance in the fourth degree is a class C felony and defendant was a second felony drug offender, County Court failed to include a period of postrelease supervision in sentencing defendant on that count. We therefore modify the judgment by vacating the sentence imposed for criminal possession of a controlled substance in the fourth degree, and we remit the matter to County Court for resentencing on count three of the indictment (see People v Sparber, 10 NY3d 457, 469). Inasmuch as the plea agreement provided in relevant part that [*2]defendant would be sentenced to a three-year period of postrelease supervision, defendant need not be afforded the opportunity to withdraw her plea of guilty prior to resentencing (cf. People v Waggoner, 53 AD3d 1143).