People v. Torres , 849 N.Y.S.2d 846 ( 2008 )

Appeal from a judgment of the Monroe County Court (John J. Connell, J.), rendered January 19, 2005. The judgment convicted defendant, upon his plea of guilty, of attempted robbery in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Monroe County Court for resentencing.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [1]). As the People correctly concede, County Court erred in imposing a five-year period of postrelease supervision for a class D violent felony offense (see § 70.02 [former (1) (c)]; § 70.45 [former (2)]; People v Clinkscales, 35 AD3d 1266 [2006]). Inasmuch as the record does not indicate whether the court intended to impose the maximum period of postrelease supervision, we modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing (see People v Bowden, 15 AD3d 884 [2005], lv denied 4 NY3d 851 [2005], 5 NY3d 786 [2005]; cf. People v Roman, 43 AD3d 1282 [2007]; People v Keith, 26 AD3d 879 [2006], lv denied 6 NY3d 835 [2006]). Present—Hurlbutt, J.P., Martoche, Smith, Lunn and Peradotto, JJ.