CRUZ, GILBERT, PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
732
KA 14-01976
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
GILBERT CRUZ, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (ASHLEY R.
LOWRY OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered August 28, 2014. The judgment convicted
defendant, upon his plea of guilty, of rape in the second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of rape in the second degree (Penal Law § 130.30 [1]),
defendant contends that his waiver of the right to appeal is not
valid, and he challenges the severity of the sentence. We agree with
defendant that the waiver of the right to appeal is invalid because
Supreme Court failed to advise him properly of the potential period of
postrelease supervision (see generally People v Lococo, 92 NY2d 825,
827; People v Thomas, 272 AD3d 985, 985-986). Nevertheless, we
conclude that the sentence, including the term of postrelease
supervision, is not unduly harsh or severe. We note, however, that
both the certificate of conviction and the uniform sentence and
commitment form incorrectly recite that defendant was convicted of
attempted rape in the second degree rather than the completed crime.
The certificate of conviction and the uniform sentence and commitment
form must therefore be amended to correct that clerical error (see
People v Peyatt, 140 AD3d 1680, 1680, lv denied 28 NY3d 935; People v
Maloney, 140 AD3d 1782, 1783).
Frances E. Cafarell
Entered: November 10, 2016
Clerk of the Court