| People v Rodriguez |
| 2009 NY Slip Op 01702 [60 AD3d 452] |
| March 10, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Edwin Rodriguez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), forrespondent.
Judgment of resentence, Supreme Court, New York County (Carol Berkman, J.), renderedJuly 16, 2008, resentencing defendant to a term of seven years with five years' postreleasesupervision (PRS), unanimously affirmed.
The court properly resentenced defendant pursuant to Correction Law § 601-d tocomply with the requirement that PRS be part of the court's oral pronouncement of sentence (see People v Sparber, 10 NY3d457 [2008]). We reject defendant's arguments that the court lacked authority and jurisdictionto correct his sentence once he completed the prison portion thereof (see People v Hernandez, 59 AD3d180 [2009]). Defendant's double jeopardy argument, which is of a type that requirespreservation (see People v Gonzalez, 99 NY2d 76, 82-83 [2002]), and his remainingchallenges to the resentencing are unpreserved and we decline to review them in the interest ofjustice. As an alternative holding, we find them without merit (see Hernandez,supra). With regard to defendant's argument that the resentencing court had discretion tolet stand the original sentence, which unlawfully lacked a provision for PRS, we conclude thatCorrection Law § 601-d and Penal Law § 70.85, when read together, make clear thata court imposing a resentence pursuant to these enactments has no discretion to omit PRSwithout the prosecutor's consent, which was lacking here. Concur—Tom, J.P., Friedman,Gonzalez, Sweeny and McGuire, JJ.