| People v Thomas |
| 2009 NY Slip Op 09163 [68 AD3d 514] |
| December 10, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Edward Thomas, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Timothy C. Stone of counsel), forrespondent.
Judgment of resentence, Supreme Court, New York County (Carol Berkman, J.), renderedOctober 14, 2008, resentencing defendant, as a second felony offender, to concurrent terms ofthree years and 1½ to 3 years, with five years' postrelease supervision, unanimouslyaffirmed.
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 (see People v Sparber, 10 NY3d457 [2008]). The resentencing was not untimely under Correction Law § 601-d (4)(d), because defendant's attorney consented to adjournments of the proceedings so that defendantcould be produced. We reject defendant's argument that by providing that "[t]he designatedperson may, with counsel, knowingly consent to extend the time periods specified in paragraphs(c) and (d) of this subdivision," Correction Law § 601-d (4) (e) requires a defendant'spersonal consent. There is nothing in that language, or elsewhere, to suggest that the Legislatureintended to add to the very narrow category of fundamental decisions to be made by a defendantpersonally (see People v Ferguson, 67 NY2d 383, 390 [1986]). In particular,"[s]cheduling matters are plainly among those for which agreement by counsel generallycontrols" (New York v Hill, 528 US 110, 115 [2000]).
In any event, we also conclude that when a resentencing does not comply with the timelimits set forth in Correction Law § 601-d (4) (c) or (d), this does not entitle a defendant tohave PRS removed from the sentence. These time limits do not affect a court's inherent power tocorrect its error in sentencing (see Correction Law § 601-d [8]; People vPelsey, 25 Misc 3d 1205[A], 2009 NY Slip Op 51979[U], *3 [Sup Ct, Queens County2009]; see also People v Sparber, 10 NY3d at 471-472).
Defendant failed to preserve his claims that the court lacked authority and jurisdiction tocorrect his sentence and that double jeopardy and due process protections rendered hisresentencing unconstitutional, and we decline to review them in the interest of justice (see People v Rodriguez, 60 AD3d452 [2009], lv granted 12 NY3d 928 [2009]). As an alternative [*2]holding, we find them without merit (see People v Hernandez, 59 AD3d180 [2009], lv granted 12 NY3d 817 [2009]). Concur—Mazzarelli, J.P.,Andrias, Saxe, Catterson and Acosta, JJ.