| People v Russ |
| 2009 NY Slip Op 09786 [68 AD3d 1703] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Bryon K.Russ, Appellant. |
—[*1] Bryon K. Russ, defendant-appellant pro se. R. Michael Tantillo, District Attorney, Canandaigua, for respondent.
Appeal from a resentence of the Ontario County Court (William F. Kocher, J.), renderedNovember 13, 2008. Defendant was resentenced upon his conviction of robbery in the firstdegree (two counts), assault in the first degree, and criminal possession of a weapon in thesecond degree.
It is hereby ordered that the resentence so appealed from is unanimously modified on the lawby vacating the directive that the sentences shall run consecutively to the sentence imposed byWayne County Court and as modified the resentence is affirmed.
Memorandum: Defendant was convicted upon a jury verdict of, inter alia, robbery in the firstdegree (Penal Law § 160.15 [2]), and he appeals from the resentence on that conviction.Ontario County Court (Harvey, J.) sentenced defendant to concurrent determinate terms ofimprisonment on each count (People v Russ, 292 AD2d 862 [2002], lv denied 98NY2d 713 [2002], 99 NY2d 539 [2002]), but failed to state that it was imposing an additionalperiod of postrelease supervision with respect to each count, as required by Penal Law §70.45 (1). Defendant thereafter moved to set aside the sentence as illegal pursuant to CPL 440.20(1) and, with the consent of the People, County Court (Kocher, J.) resentenced defendant to theoriginally imposed determinate sentences of imprisonment with no postrelease supervision,pursuant to Penal Law § 70.85. We agree with defendant that the court at resentencingerred in directing that the sentences shall run consecutively to a sentence imposed by WayneCounty Court subsequent to the conviction in Ontario County. "The power of a court of originaljurisdiction to review a sentence is narrowly limited by case law and statute" (People vTavano, 67 AD2d 1090, 1091 [1979]; see generally CPL 430.10). In resentencingdefendant pursuant to Penal Law § 70.85, the court had no authority to direct that thesentences run either concurrently with or consecutively to the sentence imposed by WayneCounty Court. We therefore modify the resentence accordingly. We have considered thecontentions of defendant in his pro se supplemental brief and conclude that they are lacking inmerit. Present—Scudder, P.J., Smith, Peradotto, Green and Gorski, JJ.