VANVALKINBURGH, JAMES, PEOPLE v

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

1373
KA 11-01406
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

JAMES VANVALKINBURGH, DEFENDANT-APPELLANT.

BENDER & BENDER, LLP, BUFFALO (PAUL A. BENDER OF COUNSEL), FOR
DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR RESPONDENT.

Appeal from a resentence of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered June 23, 2010. Defendant was
resentenced upon his conviction of rape in the third degree (three
counts).

It is hereby ORDERED that the resentence so appealed from is
unanimously reversed on the law and the matter is remitted to Supreme
Court, Erie County, for resentencing.

Memorandum: Defendant appeals from a resentence upon his
conviction of three counts of rape in the third degree (Penal Law §
130.25 [2]). Defendant’s contentions regarding the severity of his
resentence are encompassed by the valid waiver of the right to appeal
from the resentence (see People v Lopez, 6 NY3d 248, 256). Contrary
to defendant’s contention, the waiver of the right to appeal at the
time of the plea is not subject to our review inasmuch as he did not
appeal from the judgment, and the resentence occurred more than 30
days after the original sentence (see CPL 450.30 [3]). We
nevertheless note, however, that defendant’s contention that Supreme
Court imposed an aggregate period of 30 years of postrelease
supervision is not supported by the record (cf. People v Kennedy, 78
AD3d 1477, 1479, lv denied 16 NY3d 798). As defendant has failed to
recognize, the periods of postrelease supervision imposed on the
consecutive terms of imprisonment “shall merge with and be satisfied
by discharge of the period of post[]release supervision having the
longest unexpired time to run” (Penal Law § 70.45 [5] [c]).

Although defendant does not challenge the legality of the
sentence, the court was required to impose determinate terms of
imprisonment in “whole or half years” (Penal Law § 70.80 [3]), and we
cannot allow the illegal sentences of 2a years of imprisonment
imposed on each count to stand (see Kennedy, 78 AD3d at 1479; see
 -2- 1373
KA 11-01406

generally People v March, 89 AD3d 1496). We therefore reverse the
resentence and remit the matter to Supreme Court for a further
resentencing.

Entered: December 23, 2011 Frances E. Cafarell
Clerk of the Court