| People v Johnson |
| 2009 NY Slip Op 08682 [67 AD3d 597] |
| November 24, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Marcus Johnson, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Charlotte E. Fishman of counsel), forrespondent.
Judgment of resentence, Supreme Court, New York County (Marcy L. Kahn, J.), rendered onor about December 12, 2008, resentencing defendant, as a second felony offender, to a term of5½ to 11 years, and specifying that the sentence be served consecutively to anundischarged sentence for a previous conviction, unanimously affirmed.
Defendant was sentenced in 1999 as a second felony offender, and was therefore subject tothe consecutive sentencing provisions of Penal Law § 70.25 (2-a). Where a sentencingcourt is required by statute to impose a consecutive sentence, it is deemed to have imposed theconsecutive sentence the law requires, even in the absence of an express judicial directive to thateffect (People ex rel. Gill v Greene,12 NY3d 1 [2009], cert denied 558 US —, 130 S Ct 86 [2009]). Accordingly,defendant's 1999 sentence had always been consecutive to his undischarged prior sentence, uponwhich he had been paroled, and the Department of Correctional Services correctly calculateddefendant's conditional release date to reflect the consecutive sentence. At the 1999 sentencing,the court said nothing that could lead defendant to believe he had received concurrent sentences,and we reject his arguments in this regard. Since the sentences were already consecutive, the2008 resentencing that is the subject of this appeal was unnecessary, but not improper.Defendant's due process and double jeopardy claims are without merit.
Motion seeking leave to file pro se supplemental brief denied. Concur—Friedman,J.P., McGuire, Renwick, Richter and Manzanet-Daniels, JJ.