Opinion
2012-06-29
The PEOPLE of the State of New York, Respondent, v. Stanley L. HOWARD, Defendant–Appellant. (Appeal No. 1.)
Williams, Heinl, Moody & Buschman, P.C., Auburn (Ryan James Muldoon of Counsel), for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.
Williams, Heinl, Moody & Buschman, P.C., Auburn (Ryan James Muldoon of Counsel), for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant was convicted following a jury trial of three counts of robbery in the first degree (Penal Law § 160.15[2]-[4] ), and one count each of criminal possession of a weapon in the second degree (§ 265. 03 [former (2) ] ), and criminal possession of stolen property in the fifth degree (§ 165.40), and he appeals from a resentence with respect to those convictions. County Court (Corning, J.) originally sentenced defendant as a second felony offender to determinate concurrent terms of imprisonment, the longest of which was 15 years, but failed to impose periods of postrelease supervision (PRS) for the determinate terms as required by Penal Law § 70.45(1). To remedy that error ( seeCorrection Law § 601–d), County Court (Leone, J.) later resentenced defendant to the same terms of imprisonment with corresponding periods of PRS.
Because defendant was still serving his original sentence at the time he was resentenced, we reject his contention that the resentence violated his rights under the Double Jeopardy Clause of the Fifth Amendment ( see People v. Lingle, 16 N.Y.3d 621, 630–631, 926 N.Y.S.2d 4, 949 N.E.2d 952;People v. Nunes, 89 A.D.3d 1559, 1560, 932 N.Y.S.2d 802,lv. denied18 N.Y.3d 885, 939 N.Y.S.2d 755, 963 N.E.2d 132;cf. People v. Williams, 14 N.Y.3d 198, 217–220, 899 N.Y.S.2d 76, 925 N.E.2d 878,cert. denied––– U.S. ––––, 131 S.Ct. 125, 178 L.Ed.2d 242;People v. Kelly, 96 A.D.3d 1700, 946 N.Y.S.2d 822). We likewise reject defendant's contention that there was a violation of CPL 380.30 based on the delay between his original sentencing and his resentencing that deprived County Court (Leone, J.) of its jurisdiction to resentence him. Where, as here, the “ defendant[ ] w[as] resentenced within a reasonable time after [the Department of Correctional Services] notified the court[ ] that” he qualified as a “ ‘designated person[ ]’ under Correction Law § 601–d,” there is no violation of CPL 380.30( Williams, 14 N.Y.3d at 213, 899 N.Y.S.2d 76, 925 N.E.2d 878).
Although defendant's further contention that the court failed to resentencehim within the time limits set forth in Correction Law § 601–d (4)(a) and (c) is factually correct, it is well settled that such failures do not provide a basis for reversal ( see People v. Savery, 90 A.D.3d 1505, 1505, 935 N.Y.S.2d 409,lv. denied18 N.Y.3d 928, 942 N.Y.S.2d 467, 965 N.E.2d 969;People v. Becker, 72 A.D.3d 1290, 1291, 899 N.Y.S.2d 408,lv. denied15 N.Y.3d 747, 906 N.Y.S.2d 819, 933 N.E.2d 218;People v. Thomas, 68 A.D.3d 514, 515, 890 N.Y.S.2d 532). Finally, we reject defendant's contention that the resentence imposed, with the addition of terms of PRS, constituted cruel and unusual punishment. The court was statutorily mandated to impose five-year terms of PRS as to defendant's convictions of robbery and criminal possession of a weapon ( seePenal Law § 70.06 [former (6) ]; § 70.45 [former (1) ], [former (2) ] ), and it cannot be said that those terms were “ ‘grossly disproportionate to the crime[s]’ ” ( People v. Holmquist, 5 A.D.3d 1041, 1042, 773 N.Y.S.2d 682,lv. denied2 N.Y.3d 800, 781 N.Y.S.2d 300, 814 N.E.2d 472;see People v. Wright, 85 A.D.3d 1642, 1644, 924 N.Y.S.2d 701,lv. denied17 N.Y.3d 863, 932 N.Y.S.2d 28, 956 N.E.2d 809). We have considered defendant's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.