Decided and Entered: May 12, 2005 14755 ________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v MEMORANDUM AND ORDER JAMES E. CHESTNUT, Appellant. ________________________________ Calendar Date: April 13, 2005 Before: Mercure, J.P., Peters, Spain, Lahtinen and Kane, JJ. __________ Kathryn S. Dell, Troy, for appellant. Patricia A. De Angelis, District Attorney, Troy (Jill P. Swingruber of counsel), for respondent. __________ Appeal from a judgment of the County Court of Rensselaer County (McGrath, J.), rendered November 18, 2002, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree. Defendant was charged in an indictment with three counts of burglary in the first degree. He pleaded guilty to attempted burglary in the second degree, a class D violent felony, in full satisfaction of the indictment and waived his right to appeal. At the time of the plea, County Court advised defendant that, in addition to a term of imprisonment, his sentence would include a five-year period of postrelease supervision. Prior to sentencing, it was discovered that defendant had been previously convicted of criminal possession of a controlled substance in the fourth degree, a class C felony. County Court sentenced him on the attempted burglary conviction to a three-year prison term, to be followed by a five-year period of postrelease supervision. Defendant’s sole contention on appeal is that County Court erred in imposing upon him a five-year period of postrelease supervision, as opposed to a three-year period. Initially, we note that Penal Law § 70.45 (2) provides, in pertinent part, that: “The period of post-release supervision for a determinate sentence shall be five years, except that such period shall be three years whenever a determinate sentence of imprisonment is imposed pursuant to section 70.02 of this article upon a conviction for a class D or E violent felony offense …” Pursuant to the above statute, a five-year period of postrelease supervision is imposed in cases where the defendant is a second violent felony offender (see e.g. People v Reed, 6 AD3d 554, 555 [2004], lv denied 3 NY3d 661 [2004]; People v Robinson, 297 AD2d 827, 827 [2002], lv denied 99 NY2d 563 [2002]; People v Goss, 286 AD2d 180, 183 [2001]). Where the defendant is a first time violent felony offender, the three-year period is imposed, provided the crime committed is a class D or E violent felony (see Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 70.45, at 396). Here, defendant was a first time violent felony offender as his prior crime, albeit a felony, was nonviolent. Inasmuch as the crime for which he was sentenced was a class D violent felony, a three-year period of postrelease supervision should have been imposed and the judgment must be modified accordingly. Mercure, J.P., Peters, Spain, Lahtinen and Kane, JJ., concur. ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as imposed upon defendant a five-year period of postrelease supervision; sentence vacated to that extent and a three-year period of postrelease supervision is imposed; and, as so modified, affirmed.
