| People v Primm |
| 2008 NY Slip Op 10441 [57 AD3d 1525] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Xavier Primm,Appellant. (Appeal No. 2.) |
—[*1] Frank J. Clark, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a resentence of the Supreme Court, Erie County (Ronald H. Tills, A.J.), renderedJuly 8, 2005. Defendant was resentenced to a determinate term of imprisonment of three years and afive-year period of postrelease supervision upon his conviction of attempted burglary in the seconddegree.
It is hereby ordered that the resentence so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon his pleaof guilty, of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]).Defendant was sentenced to a determinate term of imprisonment of three years and a three-year periodof postrelease supervision. In appeal No. 2, defendant appeals from a resentence pursuant to which hewas resentenced to a determinate term of imprisonment of three years and a five-year period ofpostrelease supervision. Initially, we note that, because the sentence in appeal No. 1 was supersededby the resentence in appeal No. 2, the appeal from the judgment in appeal No. 1 insofar as it imposedsentence must be dismissed (see People v Haywood, 203 AD2d 966 [1994], lv denied83 NY2d 967 [1994]; see also People vMarinaro, 45 AD3d 867 [2007], lv denied 11 NY3d 790 [2008]). Indeed, the solecontention of defendant on appeal concerns the resentence in appeal No. 2. Defendant contends thatSupreme Court erred in resentencing him, and that the original three-year period of postreleasesupervision should be reinstated. Although the court erred in resentencing defendant without firstaffording him the opportunity to withdraw his plea, the proper remedy for that error would be vacaturof the plea, and defendant has expressly rejected that remedy on appeal (see People v Dean, 52 AD3d 1308[2008], lv denied 11 NY3d 736 [2008]; see also Marinaro, 45 AD3d at 868).Because the illegal sentence of a three-year period of postrelease supervision cannot be reinstated (see generally People v Barber, 31 AD3d1145), we therefore affirm the resentence in appeal No. 2. Present—Scudder, P.J., Smith,Centra and Fahey, JJ.