Opinion
339 KA 11-01981
03-20-2015
The PEOPLE of the State of New York, Respondent, v. Antwan DAVIS, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, and WHALEN, JJ.
Opinion
MEMORANDUM:Defendant was convicted in 2001 upon a jury verdict of murder in the second degree (Penal Law § 125.25[3] ), robbery in the first degree (§ 160.15[2] ), robbery in the second degree (§ 160.10[2][a] ), assault in the second degree (§ 120.05[2] ), and criminal possession of a weapon in the second degree (§ 265.03[2] ). Supreme Court failed to impose periods of postrelease supervision (PRS) on those counts for which a determinate sentence was imposed, as required by Penal Law § 70.45(1). While defendant was serving his sentence, the court resentenced him pursuant to Correction Law § 601–d, to add the requisite periods of PRS. Defendant now contends that the resentencing violates his constitutional double jeopardy and due process rights. Even assuming, arguendo, that defendant's contentions do not require preservation (cf. People v. Woods, 122 A.D.3d 1400, 1401, 997 N.Y.S.2d 570 ; People v.
Smikle, 112 A.D.3d 1357, 1358, 978 N.Y.S.2d 508, lv. denied 22 N.Y.3d 1141, 983 N.Y.S.2d 500, 6 N.E.3d 619 ; see generally People v. Williams, 14 N.Y.3d 198, 220–221, 899 N.Y.S.2d 76, 925 N.E.2d 878, cert. denied 562 U.S. 947, 131 S.Ct. 125, 178 L.Ed.2d 242 ), we nevertheless conclude that they lack merit.
Inasmuch as “defendant had not yet completed his originally imposed sentence of imprisonment when he was resentenced, his resentencing to a term including the statutorily required period of postrelease supervision did not violate the double jeopardy or due process clauses of the United States Constitution” (People v. Fox, 104 A.D.3d 789, 789–790, 960 N.Y.S.2d 330, lv. denied 21 N.Y.3d 943, 968 N.Y.S.2d 5, 990 N.E.2d 139 ; see People v. Lingle, 16 N.Y.3d 621, 630–633, 926 N.Y.S.2d 4, 949 N.E.2d 952 ; People v. Ralph, 91 A.D.3d 796, 796–797, 936 N.Y.S.2d 903, lv. denied 20 N.Y.3d 1064, 962 N.Y.S.2d 615, 985 N.E.2d 925 ; cf. Williams, 14 N.Y.3d at 217, 899 N.Y.S.2d 76, 925 N.E.2d 878 ). Defendant's reliance on cases rejected by the Court of Appeals in Lingle is misplaced (see Lingle, 16 N.Y.3d at 632, 926 N.Y.S.2d 4, 949 N.E.2d 952 ).
It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.