PEOPLE v. ROWLETT

Ordered that the judgment is modified, on the law, by vacating the sentence of a determinate term of 7 years imprisonment with 5 years postrelease supervision and substituting therefor a sentence of an indeterminate term of 3½ to 7 years imprisonment; as so modified, the judgment is affirmed.

As the People concede, the sentence imposed, a determinate term of 7 years imprisonment with 5 years post-release supervision, was illegal for the defendant's conviction, as a second felony offender, of robbery in the third degree, a nonviolent class D felony ( see Penal Law §§ 160.05, 70.02 [c]; § 70.06 ; § 70.45; People v. McKay, 10 AD3d 734). The maximum term of imprisonment that may be imposed upon a second felony offender for a conviction of robbery in the third degree is an indeterminate term of 3½ to 7 years, and post-release supervision is only authorized for determinate sentences ( see Penal Law § 70.06 [d]; [4] [b]; § 70.45). The People request that we vacate the defendant's plea, but that remedy is beyond our power, where, as here, the defendant objects ( see Matter of Kisloff v. Covington, 73 NY2d 445, 452; Matter of Campbell v. Pesce, 60 NY2d 165, 169).