People v. Smith

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, three counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and four counts of criminal possession of a controlled substance in the third degree (§ 220.16 [1]). As part of the plea agreement, Supreme Court stated that it would sentence defendant to concurrent five-year terms of imprisonment with a one-year period of postrelease supervision. We agree with defendant that the court erred in enhancing the sentence by imposing a IV2-year period of postrelease supervision that was not included in the plea agreement (see generally People v Pickett, 90 AD3d 1526, 1527 [2011]). Although defendant failed to preserve his contention for our review “because [he] did not object to the enhanced sentence, nor did he move to withdraw the appeal or to vacate the judgment of conviction” (People v Sprague, 82 AD3d 1649, 1649 [2011], lv denied 17 NY3d 801 [2011]), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We therefore modify the judgment by reducing the period of postrelease supervision to one year. As modified, the sentence is not unduly harsh or severe. Present — Smith, J.P., Peradotto, Lindley, Valentino and Whalen, JJ.