Opinion
06-12-2015
The PEOPLE of the State of New York, Respondent, v. Andre TERRY, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Romana A. Lavalas of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Romana A. Lavalas of Counsel), for Respondent.
Opinion
MEMORANDUM: Defendant was convicted in 2003 upon a jury verdict of, inter alia, three counts of assault in the second degree (Penal Law § 120.05[2] ) and four counts of criminal possession of a weapon in the second degree (§ 265.03 [2] ), and County Court failed to impose a period of postrelease supervision with respect to those counts as required by Penal Law § 70.45(1). Defendant contends that, because he had served nearly eight years of his original 20–year sentence of imprisonment, the sentencing court violated his constitutional rights against double jeopardy and to due process by resentencing him pursuant to Correction Law § 601–d and pronouncing the relevant term of postrelease supervision (PRS). As defendant himself acknowledges, however, the Court of Appeals has explicitly held that a resentencing to correct a failure to pronounce a period of PRS is permissible (see People v. Sparber, 10 N.Y.3d 457, 472, 859 N.Y.S.2d 582, 889 N.E.2d 459 ), and that such resentencing does not violate the prohibition against double jeopardy or the right to due process when it occurs before completion of a defendant's originally-imposed sentence of imprisonment; moreover, the Court explicitly rejected defendant's instant contention that he had served a significant portion of his sentence and thus had a reasonable expectation of the finality of his sentence (see People v. Lingle, 16 N.Y.3d 621, 630–633, 926 N.Y.S.2d 4, 949 N.E.2d 952 ). “Indeed, the court was bound to impose ‘statutorily-required sentences' ” (People v. Mike, 124 A.D.3d 1325, 1325, 997 N.Y.S.2d 583, quoting Lingle, 16 N.Y.3d at 633, 926 N.Y.S.2d 4, 949 N.E.2d 952 ).
It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.
CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, and DeJOSEPH, JJ., concur.