| People v Jordan |
| 2009 NY Slip Op 06080 [65 AD3d 428] |
| August 4, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Terence G. Jordan, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Vincent Rivellese of counsel), forrespondent.
Judgment of resentence, Supreme Court, New York County (James A. Yates, J.), renderedJuly 5, 2007, resentencing defendant, as a second felony offender, to a term of three years withfive years' postrelease supervision, unanimously affirmed.
On January 27, 2000, defendant pleaded guilty to assault in the second degree for strikingand breaking the jaw of his girlfriend's 15-year-old daughter. In exchange for his guilty plea,defendant was promised a determinate sentence of three years' imprisonment, and on March 6,2000, the court imposed the promised term. No mention was made, either at the plea allocutionor at the sentencing proceeding, that defendant would be subject to any period of postreleasesupervision (PRS). Despite being given written notice of his right to appeal from the judgment,defendant did not do so.
In 2002, defendant was released from prison and began serving a term of PRS. In 2007,while still under PRS, he moved pursuant to CPL 440.20 to set aside the sentence on the groundthat he was not advised at the time of sentencing that his sentence included a period of PRS. Thecourt had defendant produced so it could formally pronounce the PRS component. On July 5,2007, in open court, the court orally informed defendant, who was represented by counsel, thathis sentence included a five-year period of PRS (see People v Sparber, 10 NY3d 457, 471 [2008]; People v Edwards, 62 AD3d 467[2009]).
Defendant now appeals from the resentencing proceeding and maintains that the court lackedjurisdiction, that he was deprived of due process and that he was subject to doublejeopardy.[FN*]As a remedy, defendant asks that the PRS component of his sentence be excised. Defendant'srequest is academic because, by the time this appeal was heard, he had already [*2]completed his term of PRS. Thus, there is no remaining sentencefor defendant to serve and nothing for this Court to excise. In any event, this Court, in othersimilar PRS appeals, has rejected these legal arguments (see People v Rodriguez, 60 AD3d 452 [2009]; People v Lewis, 60 AD3d 425[2009]; People v Hernandez, 59AD3d 180 [2009]; People vWilliams, 59 AD3d 172 [2009]).
Defendant does not contend that the court erred in any other respect during the resentencingproceeding. Rather, he argues that this Court, on an appeal from the resentence, must vacate hisJanuary 2000 plea because the court failed to apprise him of the PRS aspect of his sentence whenthe plea was taken (see People vCatu, 4 NY3d 242 [2005]). We conclude that defendant's belated attacks on the pleaproceeding are not properly before us. CPL 450.30 (3) provides that "[f]or purposes of appeal,the judgment consists of the conviction and the original sentence only, and when a resentenceoccurs more than thirty days after the original sentence, a defendant who has not previously fileda notice of appeal from the judgment may not appeal from the judgment, but only from theresentence." In People v DeSpirito(27 AD3d 479 [2006]), the Second Department applied this statutory provision and rejecteda Catu claim raised on an appeal from a resentence. The court held that the defendant'schallenge to his guilty plea on the ground that he was not advised that he would be subject toPRS is not reviewable on an appeal only from the resentence. We reach the same conclusionhere.
In cases outside of the Catu context, we have consistently held to the view that adefendant's failure to timely appeal from the underlying judgment jurisdictionally forecloses anychallenge to the plea proceeding on an appeal from a resentence (see People v McMillan,228 AD2d 166 [1996], lv denied 88 NY2d 1070 [1996]; People v Lugo, 176AD2d 177 [1991]; see also People vQuinones, 22 AD3d 218 [2005], lv denied 6 NY3d 817 [2006]; People v Ramirez, 5 AD3d 102[2004], lv denied 2 NY3d 805 [2004]; People v Williams, 192 AD2d 322[1993]). The other three Departments of the Appellate Division have come to the sameconclusion (see People v Ferrufino,33 AD3d 623 [2006], lv denied 7 NY3d 901 [2006]; People v Satiro, 28 AD3d 497[2006]; People v Pittman, 17 AD3d930 [2005], lv denied 5 NY3d 767 [2005]; People v Main, 213 AD2d 981[1995], lv denied 85 NY2d 976 [1995]), and we see no reason to depart from theseholdings and apply a different rule here.
People v Louree (8 NY3d541 [2007]), relied on by defendant, does not require a contrary result. In Louree,the Court of Appeals held that a defendant may raise a Catu violation on direct appeal,even in the absence of a postallocution motion. However, this is not a direct appeal of thejudgment and in fact, defendant never took such an appeal. We do not read Louree asrequiring this Court to ignore the statutory limits of appellate jurisdiction contained in CPL450.30 (3) and the prior opinions of the Appellate Division construing this statute. Nor are thereany other post-Catu Court of Appeals cases, or decisions from this Court, that wouldrequire us to grant the relief defendant seeks in the procedural context presented here. To do sowould violate the well-settled principle that no appeal lies from an order arising out of a criminal[*3]proceeding absent specific statutory authorization in the CPL(see People v Stevens, 91 NY2d 270, 277 [1998]; People v Santos, 64 NY2d702, 704 [1984]). Concur—Andrias, J.P., Buckley, Moskowitz, DeGrasse and Richter, JJ.
Footnote *: Although the sentencing courtindicated that it was denying defendant's 440.20 motion, it granted relief to the extent ofpronouncing the PRS portion of the sentence. Defendant did not seek leave to appeal from thedenial of his 440.20 motion, and his time to appeal from the original judgment has long expired.