State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: February 9, 2017 107768
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
MARK C. HULSTRUNK,
Appellant.
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Calendar Date: January 11, 2017
Before: McCarthy, J.P., Garry, Lynch, Rose and Aarons, JJ.
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Theresa M. Suozzi, Saratoga Springs, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Gordon W.
Eddy of counsel), for respondent.
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Rose, J.
Appeal from a judgment of the County Court of Saratoga
County (Scarano, J.), rendered July 29, 2014, convicting
defendant upon his plea of guilty of the crime of menacing a
police officer.
Defendant waived indictment and pleaded guilty to a
superior court information charging him with menacing a police
officer. Pursuant to a plea agreement, which included a waiver
of appeal and satisfied other charges, defendant was sentenced to
time-served and five years of probation. He now appeals.
Initially, defendant's challenge to his guilty plea as not
knowing, voluntary and intelligent survives his unchallenged
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waiver of appeal, but it was not preserved by an appropriate
postallocution motion (see People v Hernandez, 140 AD3d 1521,
1522 [2016], lv denied 28 NY3d 971 [2016]). Nor did defendant's
allocution trigger the narrow exception to the preservation
requirement (see People v Lopez, 71 NY2d 662, 666 [1988]).
However, defendant's challenge to his sentence as illegal is not
precluded by the waiver of appeal (see People v Howland, 130 AD3d
1105, 1105 [2015], lv denied 26 NY3d 1089 [2015]) and, since this
claim is evident on the face of the record, it is reviewable
despite defendant's failure to timely object on this ground (see
People v Santiago, 22 NY3d 900, 903 [2013]; People v Nieves, 2
NY3d 310, 315-316 [2004]; People v Fishel, 128 AD3d 15, 17-18
[2015]).
As defendant argues, and the People concede, the sentence
imposed is illegal. The crime of menacing a police officer is a
class D violent felony offense (see Penal Law §§ 70.02 [1] [c];
120.18) for which a determinate prison sentence of between two
and eight years is required (see Penal Law § 70.02 [2] [b-1]; [3]
[c] [i]). Given that "an illegal sentence cannot stand, and the
entire sentence is part and parcel of the plea bargain," the
sentence must be vacated in its entirety (People v Collier, 79
AD3d 1162, 1163 [2010] [internal quotation marks and citations
omitted]). Accordingly, we remit to County Court for
resentencing pursuant to the governing sentencing statutes and to
provide both parties with the opportunity to withdraw from the
plea agreement (see People v DePerno, 92 AD3d 1089, 1090 [2012];
People v Collier, 79 AD3d at 1163).
McCarthy, J.P., Garry, Lynch and Aarons, JJ., concur.
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ORDERED that the judgment is modified, on the law, by
vacating the sentence imposed; matter remitted to the County
Court of Saratoga County for further proceedings not inconsistent
with this Court's decision; and, as so modified, affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court