| People v Edwards |
| 2009 NY Slip Op 03767 [62 AD3d 467] |
| May 12, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Darren Edwards, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Alan Gadlin of counsel), forrespondent.
Judgment of resentence (denominated a clarification of sentence), Supreme Court, New YorkCounty (Marcy L. Kahn, J.), rendered May 15, 2007, imposing a term of five years' postreleasesupervision, and order, same court and Justice, entered on or about February 5, 2009, whichdenied defendant's CPL 440.20 motion to set aside the sentence, unanimously affirmed.
Defendant's original sentence of seven years upon his 2002 conviction after trial ofsecond-degree assault was unlawful to the extent that it omitted any reference to postreleasesupervision (PRS). "The sole remedy for a procedural error such as this is to vacate the sentenceand remit for a resentencing hearing so that the trial judge can make the requiredpronouncement" (People v Sparber,10 NY3d 457, 471 [2008]). Accordingly, the resentencing court corrected the illegality in2007 when it granted defendant's prior CPL 440.20 motion (15 Misc 3d 1115[A], 2007 NY SlipOp 50649[U] [Sup Ct, NY County 2007]), to the extent of adding PRS to the sentence indefendant's presence. That action fully complied with the subsequent Sparber decisionby the Court of Appeals, and it is of no legal consequence that the resentencing court describedits remedy as a clarification of sentencing rather than a resentencing.
In denying defendant's subsequent CPL 440.20 motion, which is before us on this appeal, theresentencing court stated, among other things, that it would not have reduced defendant's prisonterm even if it had the power to do so (23 Misc 3d 793, 810 n 9 [Sup Ct, NY County 2009]).Therefore, we see no reason to order another resentencing, and we find it unnecessary to decidewhether a proceeding conducted for the purpose of compliance with Sparber is a plenaryresentencing that permits the court to reconsider the length of the prison component of thesentence.
We have considered and rejected defendant's remaining arguments.Concur—Gonzalez, P.J., Tom, Catterson, Richter and Abdus-Salaam, JJ. [See 15Misc 3d 1115(A), 2007 NY Slip Op 50649(U).]