Opinion
No. 2009-07631.
November 3, 2010.
Appeal by the defendant from a resentence of the Supreme Court, Queens County (Lewis, J.), imposed July 17, 2009, which, upon his convictions of robbery in the first degree and criminal possession of stolen property in the fifth degree, upon a jury verdict, imposed a period of postrelease supervision of five years in addition to the determinate term of imprisonment previously imposed on April 25, 2002.
Lynn W. L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Daniel Bresnahan of counsel; Robert S. Martinez on the brief), for respondent.
Before: Mastro, J.P., Fisher, Leventhal and Belen, JJ.
Ordered that the resentence is affirmed.
The defendant was convicted, after a jury trial, of robbery in the first degree and criminal possession of stolen property in the fifth degree. On April 25, 2002, he was sentenced to a 10-year determinate sentence on the robbery conviction and a oneyear definite sentence on the stolen property conviction, but the Supreme Court did not impose the mandatory five-year period of postrelease supervision on the robbery conviction. On July 17, 2009, while the defendant was still incarcerated and serving the original sentence, he was brought before the Supreme Court for resentencing so the mandatory period of postrelease supervision could be imposed ( see Penal Law § 70.45).
Since the defendant had not yet been released from incarceration on his original sentence when he was resentenced, the resentencing to a term including the statutorily required period of postrelease supervision did not subject him to double jeopardy or violate his right to due process of law ( see People v Pruitt, 74 AD3d 1366, lv denied 15 NY3d 855; 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 Parisi, 72 AD3d 989, lv granted 15 NY3d 776; People v Becker, 72 AD3d 1290; People v Scalercio, 71 AD3d 1060; People v Prendergast, 71 AD3d 1055, lv granted 15 NY3d 808; cf. People v Jordan, 15 NY3d 727, 728; People v Williams, 14 NY3d 198, cert denied 562 US ___, 131 S Ct 125).