| People v Prendergast |
| 2010 NY Slip Op 02588 [71 AD3d 1055] |
| March 23, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JohnPrendergast, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Anastasia Spanakos of counsel), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Queens County (Knopf,J.), imposed April 28, 2008, upon his conviction of robbery in the first degree and criminalpossession of a weapon in the fourth degree, upon a jury verdict.
Ordered that the resentence is affirmed.
The defendant was convicted, after a jury trial, of robbery in the first degree and criminalpossession of a weapon in the fourth degree and, in 2003, he was sentenced, as a second felonyoffender, to concurrent determinate terms of imprisonment of 15 years on the robbery count and1 year on the weapon possession count. In 2008, the defendant was brought before the SupremeCourt for resentencing, so that the mandatory five-year period of postrelease supervision(hereinafter PRS) could be imposed (see Penal Law § 70.45).
Contrary to the defendant's contention, the Supreme Court possessed the inherent power tocorrect the illegal sentence it initially imposed upon the defendant by adding the required periodof PRS to the sentence (see People v DeValle, 94 NY2d 870 [2000]; People vWilliams, 87 NY2d 1014 [1996]; People v Hollis, 309 AD2d 764 [2003]).Moreover, under the circumstances of this case, the resentencing did not subject the defendant todouble jeopardy (see Bozza v United States, 330 US 160 [1947]; People vSomerville, 33 AD3d 733 [2006]; cf. People v Williams,14 NY3d 198 [2010]).
Furthermore, the resentencing court was not required to exercise its discretion to considerwhether the sentence as a whole was appropriate in view of the fact that the sentence would nowinclude a period of PRS. Since the original sentencing court is presumed to have been aware thatthe sentence would include a period of PRS, and the defendant has not overcome thatpresumption, no such exercise of discretion was warranted in this case (see People vAllen, 66 AD3d 792 [2009], lv denied 13 NY3d 936 [2010]; People vStewartson, 63 AD3d 966 [2009]). Prudenti, P.J., Dillon, Florio and Austin, JJ., concur.[Prior Case History: 19 Misc 3d 1125(A), 2008 New York Slip Op 50847(U).]