| People v Johnson |
| 2010 NY Slip Op 08597 [78 AD3d 965] |
| November 16, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Daimon Johnson, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Kings County (Firetog, J.),imposed March 24, 2009, which, upon his conviction of attempted murder in the second degreeand robbery in the first degree, upon his plea of guilty, imposed a period of postreleasesupervision in addition to the determinate term of imprisonment previously imposed on April 21,1999.
Ordered that the resentence is affirmed.
On March 17, 1999, the defendant was convicted, upon his plea of guilty, of attemptedmurder in the second degree and robbery in the first degree. On April 21, 1999, the SupremeCourt sentenced him, as a second violent felony offender, to concurrent determinate prison termsof 12 years on each count. The Supreme Court, however, failed to impose the statutorily requiredperiod of postrelease supervision (hereinafter PRS). On March 24, 2009, while he was stillincarcerated in connection with those convictions, the defendant was brought before the SupremeCourt for resentencing so that the mandatory period of PRS could be imposed (see PenalLaw § 70.45; Correction Law § 601-d).
Contrary to the defendant's contention, his constitutional right to due process was notviolated by the resentencing because he had not yet been released from incarceration inconnection with the original convictions (see People v Pruitt, 74 AD3d 1366 [2010], lv denied 15NY3d 855 [2010]; People vTillman, 74 AD3d 1251 [2010], lv denied 15 NY3d 856 [2010]; People v Mendez, 73 AD3d 951[2010]; People v Murrell, 73 AD3d598 [2010], lv granted 15 NY3d 854 [2010]; People v Parisi, 72 AD3d 989 [2010], lv granted 15 NY3d776 [2010]; People v Becker, 72AD3d 1290 [2010], lv denied 15 NY3d 747 [2010]; People v Scalercio, 71 AD3d 1060[2010]; People v Prendergast, 71AD3d 1055 [2010], lv granted 15 NY3d 808 [2010]; cf. People v Jordan, 15 NY3d 727,728 [2010]; People v Williams, 14NY3d 198 [2010], cert denied 562 US —, 131 S Ct 125 [2010]).
While the defendant does not seek vacatur of his plea, he requests specific performance ofhis plea agreement, i.e., a sentence without PRS. However, specific performance is unavailablehere since the defendant did not demonstrate that, in pleading guilty, he detrimentally relied onan illegal sentence (see People vRubendall, 4 AD3d 13, 19 [2004]; cf. People v McConnell, 49 NY2d 340[1980]; People v Grimaldi, 200 AD2d 687 [1994]). Mastro, J.P., Fisher, Leventhal andBelen, JJ., concur.