Opinion
2012-02-28
The PEOPLE, etc., respondent, v. Erwin JACKSON, appellant.
Joseph F. DeFelice, Kew Gardens, N.Y., for appellant, and appellant pro se. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Joanna Hershey of counsel), for respondent.
Joseph F. DeFelice, Kew Gardens, N.Y., for appellant, and appellant pro se. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Joanna Hershey of counsel), for respondent.
Appeal by the defendant from a resentence of the County Court, Nassau County (Carter, J.), imposed October 26, 2009, upon his convictions of robbery in the first degree (nine counts) and conspiracy in the fourth degree, after remittitur from this Court for resentencing ( see People v. Jackson, 65 A.D.3d 1164, 885 N.Y.S.2d 213).
ORDERED that the resentence is affirmed.
The defendant effectively waived his right to counsel at the resentencing, as he voluntarily proceeded pro se, with the assistance of standby counsel, as he had done from the pretrial stages of this litigation until this appeal ( cf. People v. Slaughter, 78 N.Y.2d 485, 491, 577 N.Y.S.2d 206, 583 N.E.2d 919). Moreover, contrary to the contention of the defendant in his pro se supplemental brief, his resentence does not violate the Double Jeopardy Clause of the Fifth Amendment ( see People v. Lingle, 16 N.Y.3d 621, 630, 926 N.Y.S.2d 4, 949 N.E.2d 952; People v. Williams, 14 N.Y.3d 198, 214, 899 N.Y.S.2d 76, 925 N.E.2d 878, cert. denied ––– U.S. ––––, 131 S.Ct. 125, 178 L.Ed.2d 242).
The questions raised regarding the propriety of the defendant's original conviction in both the defendant's main brief and his pro se supplemental brief are not properly*907 before this Court on the appeal from the resentence ( see People v. Correa, 118 A.D.2d 651, 499 N.Y.S.2d 803; see also People v. Riley, 22 A.D.3d 609, 610, 802 N.Y.S.2d 251). Moreover, the defendant's contention that he should not have been adjudicated a persistent violent felony offender has already been considered and rejected by this Court ( see People v. Jackson, 65 A.D.3d 1164, 885 N.Y.S.2d 213). The resentence imposed is not excessive ( see People v. Suitte, 90 A.D.2d 80, 85, 455 N.Y.S.2d 675).
The defendant's remaining contentions in his pro se supplemental brief are without merit.