Opinion
No. 2009-04486.
November 9, 2010.
Appeal by the defendant from a resentence of the Supreme Court, Kings County (Brennan, J.), imposed March 26, 2009, which, upon his conviction of robbery in the first degree, upon a jury verdict, imposed a period of postrelease supervision of five years in addition to the determinate sentence of imprisonment originally imposed on February 17, 2000.
Lynn W. L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
Before: Mastro, J.P., Balkin, Eng and Hall, JJ.
Ordered that the resentence is affirmed.
At the conclusion of a jury trial, the defendant was convicted of robbery in the first degree. On February 17, 2000, the defendant was sentenced to a determinate term of 12 years imprisonment. Although the determinate sentence imposed upon the defendant for his conviction of robbery in the first degree was required to include a period of postrelease supervision ( see Penal Law § 70.45), it is undisputed that no period of postrelease supervision was pronounced at sentencing. In March 2009, while the defendant was still incarcerated and serving his original sentence, he was brought before the Supreme Court for resentencing, so that the statutorily required period of post-release supervision could be imposed ( see Correction Law § 601-d).
Since the resentencing proceeding occurred prior to the defendant's release from custody, the addition of a period of post-release supervision to the defendant's original sentence did not violate the prohibition against double jeopardy ( see People v Gittens, 77 AD3d 765 [2d Dept 2010]; People v Woods, 77 AD3d 690 [2d Dept 2010]; People v Tillman, 74 AD3d 1251, lv denied 15 NY3d 856; People v Mendez, 73 AD3d 951, lv denied 15 NY3d 854; People v Murrell, 73 AD3d 598, lv granted 15 NY3d 854; People v Becker, 72 AD3d 1290; People v Parisi, 72 AD3d 989, lv granted 15 NY3d 776; People v Prendergast, 71 AD3d 1055, lv granted 15 NY3d 808; cf. People v Williams, 14 NY3d 198, 217, cert denied 562 US ___, 131 S Ct 125). Further, the defendant's constitutional right to due process was not violated by the resentencing ( see People v Gittens, 77 AD3d 765; People v Woods, 77 AD3d 690; People v Pruitt, 74 AD3d 1366, lv denied 15 NY3d 855; People v Tillman, 74 AD3d 1251; People v Mendez, 73 AD3d 951; People v Murrell, 73 AD3d 598; People v Becker, 72 AD3d 1290; People v Scalercio, 71 AD3d 1060).