| People v Capers |
| 2009 NY Slip Op 08953 [68 AD3d 427] |
| December 3, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Henry Capers, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (David P. Stromes of counsel), forrespondent.
Judgment of resentence, Supreme Court, New York County (Charles H. Solomon, J.),rendered December 12, 2008, resentencing defendant to a term of five years, with five years'postrelease supervision, unanimously affirmed.
The court properly resentenced defendant to comply with the requirement that a term ofpostrelease supervision (PRS) be part of the court's oral pronouncement of sentence. This casepresents a variation on the interplay between People v Sparber (10 NY3d 457 [2008]) and People v Catu (4 NY3d 242[2005]).
Defendant pleaded guilty without being informed that the sentence was required to include aperiod of PRS (see Catu), and PRS was not imposed by the court, but by the Departmentof Correctional Services (see Sparber). At a resentencing proceeding under CorrectionLaw § 601-d, defendant opposed the addition of PRS on the ground, among others, that hewas entitled to specific performance of his plea bargain, which contained no provision for PRS,in that he had performed his part of the bargain by serving his sentence. Defendant did not, anddoes not presently, seek to withdraw his plea.
Without the prosecutor's consent (see Penal Law § 70.85), omission of PRSwould render defendant's sentence illegal. To the extent that the original sentence promise was afive-year prison term with no mention of PRS, that promise was unauthorized. Accordingly,defendant is not entitled to specific performance of an illegal plea bargain (see People vCooney, 290 AD2d 727, 728 [2002], lv denied 97 NY2d 752 [2002]). People vJones (75 AD2d 734 [1980]), cited by defendant, is not to the contrary because it does notinvolve an unlawful sentence promise. In any event, simply serving his sentence was not the typeof additional "performance," going beyond giving up the right to a trial, that would entitledefendant to specific performance as a matter of fairness (see People v Danny G., 61NY2d 169 [1984] [testifying for prosecution]; People v McConnell, 49 NY2d 340 [1980][same]).
We have considered and rejected defendant's procedural arguments regarding the specificperformance issue. Defendant's remaining challenges to his resentencing are similar toarguments [*2]rejected by this Court in People v Hernandez (59 AD3d180 [2009], lv granted 12 NY3d 817 [2009]). Concur—Gonzalez, P.J., Tom,Andrias, Nardelli and Richter, JJ.