People v. Jenkins

• Decision Date: 20 November 2007
• Docket Number: 2148.
• Citation: 844 N.Y.S.2d 873,2007 NY Slip Op 09119,45 A.D.3d 448
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DAVID JENKINS, Appellant.
• Court: New York Supreme Court — Appellate Division

45 A.D.3d 448

844 N.Y.S.2d 873

2007 NY Slip Op 09119

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DAVID JENKINS, Appellant.

2148.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided November 20, 2007.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered

October 17, 2006, convicting defendant, upon his plea of guilty, of sodomy in the first degree, and sentencing him, as a second violent felony offender, to a term of 10 years, unanimously modified, on the law, to the extent of deleting the provision for postrelease supervision, and otherwise affirmed.

As the People concede, since defendant committed this crime prior to the effective date of Penal Law § 70.45, which provides for postrelease supervision, his sentence is unlawful to the extent indicated. The court's allegedly premature designation of defendant as a "predicate" sex offender, was mere surplusage of no legal significance, and defendant's arguments on this issue are without merit. We perceive no basis for reducing the sentence.

Concur — Andrias, J.P., Nardelli, Gonzalez, Sweeny and Malone, JJ.