Opinion
02-02-2024
The PEOPLE of the State of New York, Respondent, v. Mark L. WILLIAMS, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
Appeal from a resentence of the Monroe County Court (Douglas A. Randall, J.), rendered October 22, 2019. Defendant was resentenced upon his conviction of robbery in the first degree and criminal possession of a weapon in the third degree.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, MONTOUR, OGDEN, AND DELCONTE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted in 2002 upon a jury verdict of robbery in the first degree (Penal Law § 160.15 [4]) and criminal possession of a weapon in the third degree (§ 265.02 [former (4)]), and County Court failed to impose a period of postrelease supervision (PRS) with respect to those counts as required by Penal Law § 70.45 (1). Defendant contends that, because he had served more than 17 years of his original 25-year sentence of imprisonment, the sentencing court violated his constitutional rights against double jeopardy and to due process by resentencing him pursuant to Correction Law § 601-d and pronouncing the relevant period of PRS. Even assuming, arguendo, that defendant’s contentions do not require preservation (cf. People v. Woods, 122 A.D.3d 1400, 1401, 997 N.Y.S.2d 570 [4th Dept. 2014], lv denied 25 N.Y.3d 1210, 16 N.Y.S.3d 532, 37 N.E.3d 1175 [2015]; People v. Smikle, 112 A.D.3d 1357, 1358, 978 N.Y.S.2d 508 [4th Dept. 2013], lv denied 22 N.Y.3d 1141, 983 N.Y.S.2d 500, 6 N.E.3d 619 [2014]; see generally People v. Williams, 14 N.Y.3d 198, 220-221, 899 N.Y.S.2d 76, 925 N.E.2d 878 [2010], cert denied 562 U.S. 947, 131 S.Ct. 125, 178 L.Ed.2d 242 [2010]), we nevertheless conclude that they lack merit.
Inasmuch as defendant had not yet completed his originally imposed sentence of imprisonment when he was resentenced, " ‘his resentencing to a term including the statutorily required period of postrelease supervision did not violate the double jeopardy or due process clauses of the United States Constitution’ " (People v. Drake, 126 A.D.3d 1382, 1383, 4 N.Y.S.3d 456 [4th Dept. 2015], lv denied 26 N.Y.3d 1144, 32 N.Y.S.3d 58, 51 N.E.3d 569 [2016]; see People v. Lingle, 16 N.Y.3d 621, 630-633, 926 N.Y.S.2d 4, 949 N.E.2d 952 [2011]; People v. Fox, 104 A.D.3d 789, 789-790, 960 N.Y.S.2d 330 [2d Dept. 2013], lv denied 21 N.Y.3d 943, 968 N.Y.S.2d 5, 990 N.E.2d 139 [2013]; cf. Williams, 14 N.Y.3d at 217, 899 N.Y.S.2d 76, 925 N.E.2d 878). Defendant’s reliance on cases rejected by the Court of Appeals in Lingle is misplaced (see Lingle, 16 N.Y.3d at 632, 926 N.Y.S.2d 4, 949 N.E.2d 952).