Opinion
Nos. 519, 520.
May 12, 2009.
Judgment of resentence (denominated a clarification of sentence), Supreme Court, New York County (Marcy L. Kahn, J.), rendered May 15, 2007, imposing a term of five years' post-release supervision, and order, same court and Justice, entered on or about February 5, 2009, which denied defendant's CPL 440.20 motion to set aside the sentence, unanimously affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (David J. Klem of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Alan Gadlin of counsel), for respondent.
Before: Gonzalez, P.J., Tom, Catterson, Richter and Abdus-Salaam, JJ.
Defendant's original sentence of seven years upon his 2002 conviction after trial of second-degree assault was unlawful to the extent that it omitted any reference to postrelease supervision (PRS). "The sole remedy for a procedural error such as this is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement" ( People v Sparber, 10 NY3d 457, 471). Accordingly, the resentencing court corrected the illegality in 2007 when it granted defendant's prior CPL 440.20 motion ( 15 Misc 3d 1115[A], 2007 NY Slip Op 50649[U] [Sup Ct, NY County 2007]), to the extent of adding PRS to the sentence in defendant's presence. That action fully complied with the subsequent Sparber decision by the Court of Appeals, and it is of no legal consequence that the resentencing court described its remedy as a clarification of sentencing rather than a resentencing.
In denying defendant's subsequent CPL 440.20 motion, which is before us on this appeal, the resentencing court stated, among other things, that it would not have reduced defendant's prison term even if it had the power to do so ( 23 Misc 3d 793, 810 n 9 [Sup Ct, NY County 2009]). Therefore, we see no reason to order another resentencing, and we find it unnecessary to decide whether a proceeding conducted for the purpose of compliance with Sparber is a plenary resentencing that permits the court to reconsider the length of the prison component of the sentence.
We have considered and rejected defendant's remaining arguments.
[ See 15 Misc 3d 1115(A), 2007 NY Slip Op 50649(U).]