| People v Rodriguez |
| 2010 NY Slip Op 04229 [73 AD3d 541] |
| May 18, 2010 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Manuel Rodriguez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Richard Nahas of counsel), forrespondent.
Judgment of resentence, Supreme Court, New York County (Gregory Carro, J.), renderedOctober 7, 2008, resentencing defendant to a term of 25 years with three years' postreleasesupervision, unanimously modified, as a matter of discretion in the interest of justice, to theextent of reducing the sentence to a term of 20 years with three years' postrelease supervision(PRS), and otherwise affirmed.
This case was one of the cases consolidated with People v Sparber (10 NY3d 457 [2008]). The Court of Appealsdirected "a resentencing hearing that will include the proper pronouncement of the relevant PRSterm" (id. at 473). Defendant argues that the resentencing court was obligated toreconsider the length of the original prison term, and requests that the case be remanded foranother resentencing. This case presents the issue this Court found unnecessary to decide in People v Edwards (62 AD3d 467,468 [2009], lv denied 12 NY3d 924 [2009]), "whether a proceeding conducted for thepurpose of compliance with Sparber is a plenary resentencing that permits the court toreconsider the length of the prison component of the sentence." We now conclude that such aresentencing only involves PRS, and does not present the sentencing court with an occasion torevisit the original prison sentence. According to Sparber, a court's failure to includePRS in its oral pronouncement of sentence "amounts only to a procedural error, akin to amisstatement or clerical error, which the sentencing court could easily remedy" (10 NY3d at472). Moreover, there was no legal error, whether procedural or substantive, in the imposition ofthe term of incarceration. The fact that the proceeding at issue was designated a resentencingdoes not necessarily imply that defendant was entitled to a completely de novo sentencing(see e.g. People v Green, 62AD3d 1024, 1026 [2009], lv denied 13 NY3d 744 [2009] [limited-purposeresentencing does not require reconsideration of original sentence found to be validly imposed];People v Quinones, 22 AD3d218, 219 [2005], lv denied 6 NY3d 817 [2006] ["resentencing does not place adefendant, for all purposes, in the position of a person being sentenced for the first time"]).
We have considered and rejected defendant's double jeopardy and due process challenges[*2]to the imposition of PRS. In the interest of justice, however,we find the sentence excessive to the extent indicated. Concur—Gonzalez, P.J., McGuire,Acosta and RomÁn, JJ.
[Recalled and vacated, see 82 AD3d 418.]