| People v Thomas |
| 2009 NY Slip Op 07699 [66 AD3d 1244] |
| October 29, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Clyde R.Thomas, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of St. Lawrence County (Rogers, J.),rendered September 10, 2008, which resentenced defendant following his conviction of thecrime of assault in the second degree.
In September 1999, County Court (Nicandri, J.) sentenced defendant, as a second violentfelony offender, to a 6½-year prison term following his conviction of assault in the seconddegree.[FN*]Although a five-year period of postrelease supervision was a mandatory component ofdefendant's sentence (see Penal Law § 70.00 [6]; § 70.45 [1]), the courtmade no mention of postrelease supervision during sentencing. Instead, the Department ofCorrectional Services (hereinafter DOCS) administratively imposed such a period on defendantprior to his [*2]conditional release from prison in April 2006.Approximately two years later, defendant violated the terms of his release and was returned toDOCS's custody, at which time DOCS informed the court that defendant was a "designatedperson" within the meaning of Correction Law § 601-d. Pursuant to that statute, CountyCourt (Rogers, J.) vacated defendant's original sentence and resentenced defendant to a6½-year prison term followed by five years of postrelease supervision. Defendant nowappeals. We affirm.
Although the Court of Appeals recently held that DOCS has no authority to impose a periodof postrelease supervision (see Matterof Garner v New York State Dept. of Correctional Servs., 10 NY3d 358, 360 [2008]), italso held that the failure of a sentencing court to impose such a mandatory period is a proceduralerror which can be rectified through resentencing in the appropriate forum (see People v Sparber, 10 NY3d457, 471 [2008]). Thereafter, the Legislature enacted Correction Law § 601-d, which"provid[es] a procedural framework for the identification and resentencing of those defendantswhose convictions required a mandatory [postrelease supervision] component that had not beenimposed by the sentencing court" (People v Hernandez, 59 AD3d 180, 181 [2009], lv granted12 NY3d 817 [2009]). The Legislature intended the statute to apply to individuals, such asdefendant, who were in the custody of DOCS as a result of violating a provision of theadministratively imposed postrelease supervision period at the time of their resentencing(see Senate Introducer Mem in Support, 2008 NY Senate Bill S8714, at 4, reprinted in2008 McKinney's Session Laws of NY, at 1818, 1820).
Against this background, we observe that the sole, limited purpose of Correction Law§ 601-d is to remedy the failure of certain trial courts to attach mandatory postreleasesupervision periods to determinate sentences as required by law (see Penal Law §70.45 [1]). The statute does not violate the principles of due process, nor does the imposition of aperiod of postrelease supervision that is required by law offend fundamental notions of fairness(see People v Hernandez, 59 AD3d at 182). Accordingly, as County Court resentenceddefendant to the original 6½-year prison term followed by the required five-year period ofpostrelease supervision, we affirm.
Rose, J.P., Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant was actuallyconvicted of two counts of assault in the second degree. This Court reduced one count toattempted assault in the second degree and the associated sentence was modified to a term of 2 to4 years, consecutive to the other sentence (274 AD2d 761 [2000], lv denied 95 NY2d939 [2000]). Neither defendant's conviction for attempted assault nor the sentence imposedthereon is a subject of this appeal.