On January 19, 2001, defendant was convicted, upon his plea of guilty, of assault in the first degree and sentenced to a determinate term of ten years imprisonment. In addition, a five-year period of post-release supervision (PRS) was imposed on him by the Department of Correctional Services (DOCS) (Penal Law § 70.45). By pro se motion dated October 19, 2006, defendant moved to vacate the five-year period of PRS, or, alternatively, to modify it to a period of two and one-half years. By decision and order dated March 30, 2007, this Court granted defendant's application to the extent of striking the five-year period of PRS administratively imposed by DOCS. In addition, the Court ordered that defendant be returned to the Court for further proceedings relating to modification of his sentence.

The relevant facts are set forth in detail in this Court's March 30, 2007 decision. On January 2, 2001, defendant pleaded guilty to assault in the first degree (Penal Law § 120.10[1]), a class B violent felony, in full satisfaction of the indictment, in exchange for a determinate sentence of ten years imprisonment. On January 19, 2001, defendant was sentenced in accordance with the terms of the negotiated plea. Neither the plea minutes, sentencing minutes, nor my order of commitment, nor my notes mentioned the imposition of any period of PRS. The ten-year determinate sentence was illegal, however, because it did not include a period of PRS (Penal Law § 70.45). After the sentencing proceedings, a five-year period of PRS was administratively imposed by DOCS.

In the March 30, 2007 decision, the Court granted defendant's application to strike the five-year period of PRS imposed by DOCS based upon the constitutional concerns raised in United States ex rel. Wampler, 298 US 460 [1936] and Earley v Murray, 451 F3d 71 [2d Cir. 2006], reh denied, 462 F3d 147 [2006]). Since the ten-year determinate sentence was illegal, however, the Court noted its inherent authority to modify it to include a period of PRS (see People v Wright, 56 NY2d 613 [1982]; People v Minaya, 54 NY2d 360, cert. denied 455 US 1024 [1981]).

On June 1, 2007, defendant appeared before this Court with counsel, who argued that adding a period of PRS to defendant's ten-year sentence would be unlawful since it was not part of his negotiated plea. Defense counsel suggested that the Court should modify the sentence by reducing the term of imprisonment to seven and a half years followed by a two and one-half year period of PRS. The People opposed the proposed modification, asserting that it would be [*2]improper to reduce the negotiated ten-year term of imprisonment.

Following the submission of memoranda of law, on July 23, 2007, both sides appeared before this Court for oral argument. Defendant asked the Court to reduce his sentence to a seven and a half year term of imprisonment followed by a two and one-half year period of PRS. Defendant alternatively suggested that the Court leave the ten-year period of imprisonment unchanged with no period of PRS imposed. The People suggested that the Court add a two and one-half year term of imprisonment to defendant's ten-year term of imprisonment. They alternatively suggested that the Court leave the term of imprisonment unchanged with no period of PRS imposed.

Upon reviewing the record and the parties' submissions, the Court concludes that defendant's sentence should not be modified to include a period of PRS. The ten-year determinate sentence negotiated by the parties reflects the intent of the parties and the Court at the time defendant entered his plea.

Turning first to the People's proposed modification, the Court finds that it is not authorized to add a period of PRS to defendant's 10-year term of imprisonment. Although courts have inherent authority to remedy an illegal sentence, in cases involving negotiated plea agreements, the modification must bring the sentence within the sentencing range that the defendant understood would be available upon conviction (see People v Richardson, 100 NY 847 [2003]; People v DeValle, 94 NY2d 870, 871-872 [2000]; People v Williams, 87 NY2d 1014, 1015, rearg. denied 89 NY2d 861 [1996]). Adding a period of PRS to defendant's ten-year term of imprisonment sentence would increase his sentencing exposure to more than he agreed to at the time of his negotiated plea. Furthermore, while defendant is not seeking to vacate his plea in this case, the Court notes that adding PRS to his ten-year term of imprisonment might vitiate the voluntariness of defendant's plea, and thus raise constitutional concerns (see People v Louree, 8 NY2d 541 [2007]; People v Van Deusen, 7 NY3d 744 [2006]; People v Catu, 4 NY3d 242 [2005]).

The Court also concludes that defendant's proposed modification, i.e, reducing the term of imprisonment to seven and one-half years and adding a two and one-half year period of PRS, is inappropriate. Reducing defendant's term of imprisonment to less than ten years would not reflect the sentence negotiated by the People. Indeed, if the Court modified the sentence as defendant requests, the People would be entitled to have the plea vacated (see People v Farrar, 52 NY2d 301, 307-308 [1981]["Where the record shows that the prosecutor's consent to a plea is premised on a negotiated sentence and a lesser sentence is later deemed more appropriate, the People should be given the opportunity to withdraw their consent"]; see also People v Hill, 39 AD3d 1, 5 [1st Dept. 2007]). Defendant has no right to have the sentence modified to a combined period of imprisonment and PRS which does not exceed the negotiated sentence (see People v Keile, 13 Misc 2d 1204 (A) [Sup. Ct. NY County, McLaughlin, J., 2006]). The sentencing function belongs to the Court, and the Court decides what sentence is appropriate in a particular case (see People v Farrar, supra at 306). Notably, in his motion to vacate the period of PRS imposed by DOCS, defendant did not seek to have his term of imprisonment reduced. He sought only to have the five-year period of PRS imposed stricken from his sentence. That relief was granted by this Court.

Contrary to defendant's argument, this case is not analogous to People v Hill, supra. In Hill, a five-year period of PRS was added to defendant's negotiated fifteen-year prison sentence. [*3]Unlike here, defendant in Hill moved to vacate his plea as involuntary since he was not informed that the sentence included PRS. Indeed, Hill would have been entitled to that relief had the Court not restructured his sentence. The Court modified defendant's sentence to a prison term of twelve and one-half years and two and one-half years of PRS, thereby placing him in a better position than he would have been in had the negotiated fifteen-year sentence been imposed. Most notably, in Hill, unlike the case at bar, the People consented to the modification.

Finally, while this Court has the inherent authority to correct an illegal sentence sua sponte, it is not required to exercise that authority, particularly where the corrected sentence will not reflect the intent of the parties and the terms of the negotiated plea. Despite the statutory mandate that determinate sentences for violent felony offenses include an additional period of PRS (Penal Law § 70.45[1]) , in numerous cases, courts have struck the period of PRS administratively imposed by DOCS without resentencing defendant to include PRS (see e.g. People ex rel. Mazario v Warden, 16 Misc 3d 1109(A) [Sup. Ct. Bronx County, Dawson, J., 2007]; People ex rel. Johnson v Warden, 15 Misc 3d 1102[A][Sup. Ct. Bronx County, Adler, J., 2007]; People ex rel. White v Warden, 15 Misc 3d 360 [Sup. Ct. Bronx County, Marcus, J., 2007]; People ex rel. Lewis v Warden, 14 Misc 3d 468 [Sup. Ct. Bronx County, Cirigliano, J., 2006]; Matter of Waters v Dennison, 13 Misc 3d 1105 [Sup. Ct. Bronx County, Cirigliano,, J. 2006]; but see People v Keile, supra [court resentenced defendant to impose five-year term of PRO]). In the case at bar, this Court concludes that the only equitable result is to decline to impose PRS.

Accordingly, I decline to modify defendant's sentence to include a period of PRS.

This constitutes the decision and order of this Court.

Dated:Bronx, New York

September 7, 2007