| People v Parisi |
| 2010 NY Slip Op 03354 [72 AD3d 989] |
| April 20, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JohnParisi, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), forrespondent.
Appeals by the defendant from (1) a resentence of the County Court, Suffolk County(Hinrichs, J.), imposed January 26, 2009, which, upon his convictions of rape in the first degreeand sodomy in the first degree under indictment No. 1505-01, upon a jury verdict, imposedperiods of postrelease supervision of five years in addition to each of the previously imposeddeterminate sentences of imprisonment of 25 years, and (2) a resentence of the same court, alsoimposed January 26, 2009, which, upon his conviction of assault in the second degree underindictment No. 1051-01, upon a jury verdict, imposed a period of postrelease supervision of fiveyears in addition to the previously imposed determinate sentence of imprisonment of sevenyears.
Ordered that the resentences are affirmed.
In November 2002 the defendant was sentenced in the County Court to a total aggregateterm of imprisonment of 57 years, upon his convictions of rape in the first degree (25 years),sodomy in the first degree (25 years), and assault in the second degree (7 years), under twoseparate indictments. Those sentences are deemed, by operation of law, to be 50 years (seePenal Law § 70.30 [1] [e] [vi]). The defendant also was sentenced to variousconcurrent indeterminate and determinate sentences that did not affect the overall length of theterm of incarceration imposed upon him. The County Court, however, did not impose thestatutorily required periods of postrelease supervision.
In January 2009 the County Court resentenced the defendant, over his objection on doublejeopardy grounds, to the same prison terms, but with each determinate sentence to be followedby a five-year period of postrelease supervision. These resentences were imposed as a result oflegislative amendments to the Correction Law and the Penal Law (see L 2008, ch 141,§ 2; Correction Law § 601-d; Penal Law § 70.85; People v Williams, 14 NY3d 198,207-208 [2010]) addressing the problems created by the failure of sentencing courts to imposestatutorily required periods of postrelease supervision when imposing determinate sentences.The defendant appeals from the resentences, and we affirm.[*2]
The resentencings did not violate the Double JeopardyClauses of the United States and New York Constitutions (see US Const 5th Amend; NYConstitution, article I, § 6), inasmuch as the defendant was still incarcerated pursuant tohis indeterminate sentences when the County Court resentenced him to terms including thestatutorily required periods of postrelease supervision (see People v Prendergast, 71 AD3d 1055 [2010]; cf. People v Williams, 14 NY3d198, 219-220 [2010]). To the extent that the defendant raises a claim under the Due ProcessClause of the United States Constitution (see US Const, 14th Amend, § 1), hiscontention is without merit (see Hawkins v Freeman, 195 F3d 732, 750 [1999];DeWitt v Ventetoulo, 6 F3d 32, 35 [1993], cert denied 511 US 1032 [1994];cf. Breest v Helgemoe, 579 F2d 95, 101 [1978], cert denied 439 US 933 [1978]).Mastro, J.P., Dickerson, Belen and Chambers, JJ., concur.