| People v Becker |
| 2010 NY Slip Op 03001 [72 AD3d 1290] |
| April 15, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Leslie Becker,Also Known as Lee Becker, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady, for respondent.
Cardona, P.J. Appeals (1) from a judgment of the County Court of Schenectady County(Giardino, J.), rendered December 19, 2008, which resentenced defendant following hisconviction of the crimes of, among others, attempted rape in the first degree and assault in thesecond degree, and (2) by permission, from an order of said court, entered May 21, 2009, whichdenied defendant's motion pursuant to CPL 440.20 to set aside the original sentence followinghis conviction of the crimes of, among others, attempted rape in the first degree and assault inthe second degree, after a hearing.
Following a nonjury trial, defendant was found guilty of, among other crimes, attemptedrape in the first degree and assault in the second degree. In December 2000, County Courtsentenced defendant to an aggregate prison term of 15 years but did not impose anystatutorily-required period of postrelease supervision. Defendant's convictions were subsequentlyaffirmed on appeal.
Following the attempt by the Department of Correctional Services to impose a period ofpostrelease supervision in 2007 and defendant's successful challenge thereto, defendant, acting[*2]pro se, moved pursuant to CPL 440.20 (1) to set aside hissentence as invalid as a matter of law and illegal because no period of postrelease supervisionwas imposed by County Court. Thereafter, defendant was assigned counsel, who also moved toset aside the sentence imposed as well as to vacate defendant's judgment of conviction. After ahearing, County Court denied those motions, but resentenced defendant pursuant to CorrectionLaw § 601-d to his original 15-year aggregate term of imprisonment and imposed anaggregate five-year period of postrelease supervision.
Initially, we are unpersuaded by defendant's contention that the resentence was unlawfulbecause County Court did not comply with the time limitations prescribed by Correction Law§ 601-d once the court received notice of the illegality of the sentence. This recordestablishes that defendant requested the adjournments in connection with his CPL article 440motions challenging the legality of the sentence. Significantly, compliance with the statutorytime periods would have impermissibly "affect[ed] the power of [the] court to hear, consider anddecide" the motions (Correction Law § 601-d [8]). In any event, "New York courts havethe inherent authority to correct illegal sentences" (People v Williams, 14 NY3d 198, 217 [2010]), regardless of thetime limits set forth in Correction Law § 601-d (4) (c) or (d) (see People v Thomas, 68 AD3d514, 515 [2009]).
Additionally, defendant's contention that the resentencing subjected him to double jeopardyis without merit. Notably, defendant has not completed serving his initial sentence and,therefore, County Court retained the power to correct the illegality of the sentence by imposing aperiod of postrelease supervision. Accordingly, defendant "cannot claim a legitimate expectationthat the originally-imposed, improper sentence is final" so as to invoke the protection againstdouble jeopardy (People v Williams, 14 NY3d at 217; see People v Chandler, 70 AD3d1128, 1129 [2010]). Finally, we have reviewed defendant's contention that Correction Law§ 601-d violates due process and find it to be without merit (see People v Thomas, 66 AD3d1244, 1245 [2009]).
Lahtinen, Malone Jr., Stein and Garry, JJ., concur. Ordered that the judgment and order areaffirmed.