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The People of v. Anthony Wayne

Appellate Division of the Supreme Court of New York, Second Department
Sep 23, 2008
54 A.D.3d 974 (N.Y. App. Div. 2008)

Opinion

No. 2006-01396.

September 23, 2008.

Appeal by the defendant from a resentence of the County Court, Suffolk County (Weber, J.), imposed January 13, 2006, upon remittitur from this Court ( see People v Smith, 23 AD3d 415).

Anna N. Howell, Lynbrook, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm of counsel), for respondent.

Before: Spolzino, J.R, Lifson, Dickerson and Chambers, JJ.


Ordered that the resentence is affirmed.

The defendant was convicted of assault in the second degree and sentenced, as a second felony offender, to a term of seven years' imprisonment and five years' postrelease supervision. Upon the direct appeal from the judgment, this Court agreed with the defendant that he was improperly adjudicated a second felony offender, as the predicate conviction had been obtained in violation of his constitutional rights, and the matter was remitted to the County Court for resentencing (see People v Smith, 23 AD3d 415, 415-416).

Upon remittitur, the defendant was resentenced to a term of six years' imprisonment and three years' postrelease supervision. On appeal from the resentence, the defendant contends that Penal Law § 70.45, the statute mandating that "[e]ach determinate sentence also includes, as a part thereof, an additional period of post-release supervision" (Penal Law § 70.45 [former (1)]), is unconstitutional. This contention is without merit (see United States v Booker, 543 US 220; Blakely v Washington, 542 US 296; Apprendi v New Jersey, 530 US 466; People v Sparber, 10 NY3d 457; People v Rivera, 5 NY3d 61, cert denied 546 US 984). We note that the Attorney General of the State of New York was notified pursuant to Executive Law § 71 that the defendant was challenging the constitutionality of Penal Law § 70.45, but determined not to intervene.


Summaries of

The People of v. Anthony Wayne

Appellate Division of the Supreme Court of New York, Second Department
Sep 23, 2008
54 A.D.3d 974 (N.Y. App. Div. 2008)
Case details for

The People of v. Anthony Wayne

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ANTHONY WAYNE SMITH…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Sep 23, 2008

Citations

54 A.D.3d 974 (N.Y. App. Div. 2008)
2008 N.Y. Slip Op. 7162
863 N.Y.S.2d 612

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