Opinion
2012-09-26
The PEOPLE, etc., respondent, v. Eric McCOY, appellant.
Lynn W.L. Fahey, New York, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Donna Aldea of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Donna Aldea of counsel), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Queens County (Mullings, J.), imposed February 27, 2009, upon his conviction of rape in the second degree (two counts), upon his plea of guilty.
ORDERED that the resentence is affirmed.
The Supreme Court acted within its inherent power when it resentenced the defendant to the same sentence it had imposed previously, but added an express provision that, as required by Penal Law § 70.25(2–a), the sentence was to run consecutively to an undischarged indeterminate sentence that had been imposed in 1994 ( see People v. Minaya, 54 N.Y.2d 360, 365, 445 N.Y.S.2d 690, 429 N.E.2d 1161,cert. denied455 U.S. 1024, 102 S.Ct. 1725, 72 L.Ed.2d 144;People v. Johnson, 67 A.D.3d 597, 597, 888 N.Y.S.2d 407;cf. People v. DeValle, 94 N.Y.2d 870, 871, 704 N.Y.S.2d 924, 726 N.E.2d 476;People v. Wright, 56 N.Y.2d 613, 614, 450 N.Y.S.2d 473, 435 N.E.2d 1088). The resentence did not change the substance of the sentence ( see CPL 430.10; cf. People v. Richardson, 100 N.Y.2d 847, 853, 767 N.Y.S.2d 384, 799 N.E.2d 607), but merely made express what Penal Law § 70.25(2–a) already deemed the Supreme Court to have done when it initially sentenced the defendant ( see People ex rel. Gill v. Greene, 12 N.Y.3d 1, 6, 875 N.Y.S.2d 826, 903 N.E.2d 1146,cert. denied sub nom. Gill v. Rock, ––– U.S. ––––, 130 S.Ct. 86, 175 L.Ed.2d 59).