| People v Ragbirsingh |
| 2010 NY Slip Op 07971 [78 AD3d 738] |
| November 3, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v SydneyRagbirsingh, Appellant. |
—[*1] and Daniel Bresnahan of counsel), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Queens County (Erlbaum, J.),imposed July 2, 2009, which, upon his conviction of burglary in the second degree, upon a jury verdict,imposed a period of postrelease supervision of five years in addition to the determinate term of nineyears imprisonment previously imposed on September 23, 2002.
Ordered that the resentence is affirmed.
The defendant was convicted, after a jury trial, of burglary in the second degree and criminalpossession of stolen property in the fifth degree. On September 23, 2002, he was sentenced, as asecond felony offender, to concurrent determinate terms of imprisonment consisting of nine years andone year, respectively. In 2009, while the defendant was still incarcerated and serving the originalsentence, the defendant was brought before the Supreme Court for resentencing, so that the mandatoryperiod of postrelease supervision (hereinafter PRS) could be imposed (see Penal Law §70.45; Correction Law § 601-d).
Since the defendant had not yet been released from incarceration on the original sentence when hewas resentenced, the resentencing to a term including the statutorily required period of PRS did notsubject him to double jeopardy or violate his right to due process of law (see People v Ware,78 AD3d 743 [2010] [decided herewith]; People v Young, 78 AD3d 744 [2010] [decidedherewith]; People v Pruitt, 74 AD3d1366 [2010], lv denied 15 NY3d 855 [2010]; People v Tillman, 74 AD3d 1251 [2010], lv denied 15 NY3d856 [2010]; People v Mendez, 73AD3d 951 [2010], lv denied 15 NY3d 854 [2010]; People v Murrell, 73 AD3d 598 [2010], lv granted 15 NY3d854 [2010]; People v Parisi, 72 AD3d989 [2010], lv granted 15 NY3d 776 [2010]; People v Becker, 72 AD3d 1290 [2010]; People v Scalercio, 71 AD3d 1060[2010]; People v Prendergast, 71 AD3d1055 [2010], lv granted 15 NY3d 808 [2010]; cf. People v Jordan, 15 NY3d 727, 728 [2010]; People v Williams, 14 NY3d 198[2010], cert denied 562 US —, 131 S Ct 125 [2010]).
Further, the resentencing court was not required to exercise its discretion to consider whether thesentence as a whole was appropriate in view of the fact that the sentence would now include a periodof PRS. Since the original sentencing court is presumed to have been aware that the sentence [*2]would include a period of PRS, and the defendant has not overcome thatpresumption, the Supreme Court did not improvidently exercise its discretion in this case (see People v Prendergast, 71 AD3d1055 [2010], lv granted 15 NY3d 808 [2010]).
The defendant's remaining contention is without merit. Mastro, J.P., Skelos, Roman and Sgroi, JJ.,concur.