| People v Mercado |
| 2010 NY Slip Op 05027 [74 AD3d 990] |
| June 8, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v OscarMercado, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Lois Cullen Valerio, RichardLongworth Hecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a resentence of the County Court, Westchester County(Zambelli, J.), imposed July 24, 2008, upon his conviction of sodomy in the first degree, sexualabuse in the first degree (two counts), aggravated sexual abuse in the second degree (twocounts), and obstruction of governmental administration in the second degree, upon a juryverdict.
Ordered that the resentence is affirmed, and the matter is remitted to the County Court,Westchester County, for the issuance of an amended sentence and commitment sheet to providethat the resentence imposed on the defendant's conviction of aggravated sexual abuse in thesecond degree under count three of the indictment is to run concurrently with the convictionsunder counts one, two, five, and six of the indictment.
In 2002 the defendant was convicted, upon a jury verdict, of sodomy in the first degree,sexual abuse in the first degree (two counts), aggravated sexual abuse in the second degree (twocounts), and obstruction of governmental administration in the second degree. This Courtaffirmed his conviction (see People vMercado, 6 AD3d 630 [2004]). In 2008 the defendant was resentenced so that themandatory periods of postrelease supervision could be imposed (see People v Sparber, 10 NY3d457 [2008]). At that time, the County Court pronounced that "all other terms and conditionsof the sentence remain in full force and effect, and all other sentences on the other counts remainin full force and effect." Upon the prosecutor's inquiry that "when you indicate all other termsand conditions apply, that implicates the consecutive versus the concurrent," the County Courtresponded in the affirmative.
The County Court properly resentenced the defendant in order to impose terms ofpostrelease supervision. However, as the defendant argues, and as the People correctly concede,the superseding sentence and commitment sheet incorrectly reflects that the 15-year sentenceimposed on count three, aggravated sexual abuse in the second degree, is to run consecutively tothe terms imposed on the other convictions. Rather, it is the five-year sentence previouslyimposed on count four, sexual abuse in the first degree, that is to run consecutively. Therefore,we remit the matter to the County Court, Westchester County, for the issuance of an amendedsentence and commitment sheet to properly reflect [*2]theCounty Court's resentence.
The resentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions in his supplemental pro se brief are without merit.Santucci, J.P., Dickerson, Chambers and Sgroi, JJ., concur.