Opinion
2012-09-28
The PEOPLE of the State of New York, Respondent, v. Peter J. MEHMEL, Defendant–Appellant.
Appeal from a resentence of the Cattaraugus County Court (Larry M. Himelein, J.), rendered May 31, 2011. Defendant was resentenced upon his conviction of robbery in the second degree. Wagner & Hart, LLP, Olean (Janine C. Fodor of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for Respondent.
Appeal from a resentence of the Cattaraugus County Court (Larry M. Himelein, J.), rendered May 31, 2011. Defendant was resentenced upon his conviction of robbery in the second degree.
Wagner & Hart, LLP, Olean (Janine C. Fodor of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for Respondent.
MEMORANDUM:
Defendant was convicted upon his plea of guilty of robbery in the second degree (Penal Law § 160.10[2][b] ), and he appeals from a resentence imposing a period of postrelease supervision in addition to the determinate term of incarceration originally imposed. The record establishes that, although County Court had advised defendant at the time of the plea that the sentence would include a five-year period of postrelease supervision, the court neglected to impose the period of postrelease supervision at the time of sentencing. As defendant correctly concedes, there is no double jeopardy violation with respect to the resentence because he is still serving the sentence originally imposed ( see People v. Lingle, 16 N.Y.3d 621, 630–631, 926 N.Y.S.2d 4, 949 N.E.2d 952;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). Defendant contends that the five-year period of postrelease supervision was illegal because there was an unreasonable delay between the date of the original sentence and that of the resentence, in violation of CPL 380.30(1) ( see Williams, 14 N.Y.3d at 213, 899 N.Y.S.2d 76, 925 N.E.2d 878). We conclude, however, that in resentencing defendant the court simply corrected the error it made at the time of the original sentence and thus that the resentence was proper ( see People v. Sparber, 10 N.Y.3d 457, 469, 859 N.Y.S.2d 582, 889 N.E.2d 459;see generally People v. Howard, 96 A.D.3d 1691, 1692, 947 N.Y.S.2d 314).
It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.