People v. Allen, 57 A.D.3d 1383 (N.Y. App. Div. 2008). · Go Syfert
People v. Allen, 57 A.D.3d 1383 (N.Y. App. Div. 2008). Cases Citing This Book View Copy Cite
3 citation events across 1 distinct court.
Strongest positive: People v. Simpson (nyappdiv, 2024-10-04)
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discussed Cited as authority (rule) People v. Simpson
N.Y. App. Div. · 2024 · confidence medium
The court was thus required to include as part of the sentence a period of postrelease supervision of not less than 1½ or more than 3 years ( see §§ 70.45 [2] [d]; 70.70 [4] [b]), and therefore the period of 1 year of postrelease supervision imposed by the court is illegal ( see People v Donaldson , 117 AD3d 1467 , 1468 [4th Dept 2014], lv denied 23 NY3d 1036 [2014]; People v Allen , 57 AD3d 1383, 1384 [4th Dept 2008]).
discussed Cited as authority (rule) People v. Gross
N.Y. App. Div. · 2010 · confidence medium
We thus modify the judgment by vacating the sentences imposed on the two counts of manslaughter in the first degree, and we remit the matter to Supreme Court for resentencing on those counts (see People v Sparber, 10 NY3d 457, 468-469 [2008]; People v Allen, 57 AD3d 1383, 1384 [2008]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Tawyna P. Allen
Appellate Division of the Supreme Court of the State of New York.
Dec 31, 2008.
57 A.D.3d 1383
Cited by 2 opinions  |  Published

[*1384] Memorandum: Defendant appeals from a judgment convicting her, upon her plea of guilty, of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]), criminal possession of a controlled substance in the third degree (§ 220.16 [1]) and criminal possession of a controlled substance in the fourth degree (§ 220.09 [1]). We reject defendant’s contention that the sentences imposed on the counts of criminal sale and criminal possession of a controlled substance in the third degree are unduly harsh and severe. “Defendant was sentenced in accordance with the plea bargain and should be bound by its terms” (People v McGovern, 265 AD2d 881 [1999], lv denied 94 NY2d 882 [2000]).

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 [2007]; People v Martinez, 213 AD2d 1072 [1995]). 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 IV2 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 [2008]). Inasmuch as the plea agreement provided in relevant part that defendant would be sentenced to a three-year period of postrelease supervision, defendant need not be afforded the opportunity to withdraw her[*1385] plea of guilty prior to resentencing (cf. People v Waggoner, 53 AD3d 1143 [2008]). Present—Hurlbutt, J.P., Centra, Fahey, Pine and Gorski, JJ.