Opinion
2015-01-2
The PEOPLE of the State of New York, Respondent, v. Charles MIKE, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, LINDLEY, and DeJOSEPH, JJ.
MEMORANDUM:
Defendant was convicted in 1999 upon a jury verdict of, inter alia, assault in the second degree (Penal Law § 120.05) and criminal possession of a weapon in the second degree (§ 265.03), and Supreme Court failed to impose a period of postrelease supervision with respect to those counts as required by Penal Law § 70.45(1). Pursuant to Correction Law § 601–d, the same court resentenced defendant to add the requisite period of PRS while he was serving his sentence. Contrary to defendant's contention, the resentence does not violate the Double Jeopardy Clause of the U.S. Constitution or his due process rights ( see People v. Lingle, 16 N.Y.3d 621, 630–633, 926 N.Y.S.2d 4, 949 N.E.2d 952). The Court of Appeals in Lingle explicitly rejected defendant's present contention that he had served a significant portion of his sentence and thus had a reasonable expectation of the finality of his sentence ( see id. at 630–631, 926 N.Y.S.2d 4, 949 N.E.2d 952; People v. Faeth, 107 A.D.3d 1426, 1428, 967 N.Y.S.2d 275, lv. denied21 N.Y.3d 1073, 974 N.Y.S.2d 322, 997 N.E.2d 147). The Court also explicitly rejected defendant's instant contention that the resentence to correct a Sparber error violates his due process rights ( see Lingle, 16 N.Y.3d at 632–633, 926 N.Y.S.2d 4, 949 N.E.2d 952). Indeed, the court was bound to impose “statutorily-required sentences” (id. at 633, 926 N.Y.S.2d 4, 949 N.E.2d 952; see People v. Quinney, 104 A.D.3d 1161, 1162, 960 N.Y.S.2d 671, lv. denied21 N.Y.3d 1008, 971 N.Y.S.2d 260, 993 N.E.2d 1283).
It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.