Opinion
2015-06-17
The PEOPLE, etc., respondent, v. Gus BETHEA, appellant.
Lynn W.L. Fahey, New York, N.Y. (Ellen Fried of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Ellen Fried of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Kings County (Brennan, J.), imposed February 26, 2013, upon his conviction of robbery in the first degree (two counts), upon a jury verdict, the resentence being two concurrent five-year periods of postrelease supervision in addition to the determinate terms of imprisonment previously imposed on May 12, 2003.
ORDERED that the resentence is affirmed.
Since the defendant had not yet completed his originally imposed sentence of imprisonment when he was resentenced, his resentencing to include the statutorily required periods of postrelease supervision did not subject him to double jeopardy or violate his right to due process of law ( see People v. Lingle, 16 N.Y.3d 621, 926 N.Y.S.2d 4, 949 N.E.2d 952; People v. Harrison, 112 A.D.3d 967, 977 N.Y.S.2d 374; People v. Hernandez, 110 A.D.3d 918, 919, 972 N.Y.S.2d 913; People v. Rogers, 105 A.D.3d 776, 961 N.Y.S.2d 796).
Under the circumstances of this case, the defendant was not deprived of the effective assistance of counsel due to his counsel's failure to make a statement on his behalf at resentencing ( see People v. Benevento, 91 N.Y.2d 708, 714, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400; People v. Morel, 250 A.D.2d 626, 672 N.Y.S.2d 753; People v. Millington, 111 A.D.2d 993, 995, 490 N.Y.S.2d 311; People v. Williams, 97 A.D.2d 599, 600, 468 N.Y.S.2d 210).
The periods of postrelease supervision imposed by the Supreme Court upon the defendant's resentencing were not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant failed to preserve for appellate review his contention that he was entitled to a “violent felony override” ( see CPL 470.05[2] ). In any event, this contention is without merit ( see People v. Lynch, 121 A.D.3d 717, 993 N.Y.S.2d 163). Contrary to the defendant's further contentions, the original sentence imposed was not illegal or unauthorized, and the resentencing proceeding was not time-barred ( see People v. Velez, 19 N.Y.3d 642, 951 N.Y.S.2d 461, 975 N.E.2d 907).