| People v Williams |
| 2011 NY Slip Op 02153 [82 AD3d 1576] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Gabriel M.Williams, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a rensentence of the Erie County Court (Sheila A. DiTullio, J.), rendered June18, 2009. The judgment resentenced defendant pursuant to Penal Law § 70.85.
It is hereby ordered that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted upon his plea of guilty of assault in the first degree(Penal Law § 120.10 [1]) and robbery in the first degree (§ 160.15 [1]) based uponhis admission that he repeatedly shot his neighbor in the head and stole property from him. Inaccordance with the plea agreement, County Court sentenced defendant to a determinate term ofimprisonment of 20 years. That sentence was illegal, however, inasmuch as it did not include aperiod of postrelease supervision (PRS). The Department of Correctional Services (DOCS)subsequently administratively imposed a five-year period of PRS, which defendant successfullychallenged in a CPLR article 78 proceeding. In granting defendant's petition, Supreme Courtvacated the PRS component of the sentence imposed by DOCS. Defendant thereafter wrote aletter to County Court requesting "a resentencing hearing." The court granted defendant's requestand appointed defense counsel to represent him. When defendant appeared in court with defensecounsel for resentencing, defendant requested that the court vacate his guilty plea. The courtdenied that request and instead resentenced defendant to the original sentence of a determinateterm of imprisonment of 20 years with no postrelease supervision.
We reject the contention of defendant that the court erred in refusing to vacate his guilty pleaand in resentencing him to the sentence originally imposed. Because the original sentence wasimposed between September 1, 1998 and June 30, 2008, the court was authorized to resentencedefendant pursuant to Penal Law § 70.85. The statute provides that, with the consent of theDistrict Attorney, a court that imposed a determinate term of imprisonment without themandatory period of PRS may, upon resentencing, "re[ ]impose the originally imposeddeterminate sentence of imprisonment without any term of [PRS], which then shall be deemed alawful sentence." As the Court of Appeals recognized in People v Boyd (12 NY3d 390, 393-394 [2009]), the purposeunderlying Penal Law § 70.85, as noted in the Governor's Approval Memorandumconcerning that statute (Bill Jacket, L 2008, ch 141, at 14, reprinted in 2008 McKinney's SessionLaws of NY, at 1653), was to " 'avoid the need for pleas to be vacated when the District Attorneyconsents to re[ ]sentencing without a term of PRS.' " We thus conclude that, inasmuch [*2]as the court properly resentenced defendant pursuant to Penal Law§ 70.85, defendant was not entitled to vacatur of his plea.
Defendant further contends that reversal is required because the court erred in failing tonotify the Attorney General of defendant's challenge to the constitutionality of Penal Law §70.85. We conclude that the People incorrectly concede that the court erred in failing to do so.The record establishes that defendant did not in fact challenge the constitutionality of section70.85 or any other statute. Although defendant argued at the resentencing proceeding that hisplea was unconstitutionally obtained because the court failed to advise him of the requirement ofPRS, that argument is fundamentally different from an argument that section 70.85 isunconstitutional. In fact, neither defendant nor defense counsel mentioned section 70.85 duringthe resentencing proceeding. In any event, defendant's contention lacks merit because it wasdefendant's obligation to notify the Attorney General of any such constitutional challenge (see Koziol v Koziol, 60 AD3d1433, 1434-1435 [2009], appeal dismissed 13 NY3d 763 [2009]; see also People v Whitehead, 46 AD3d715 [2007], lv denied 10 NY3d 772 [2008]), and he failed to do so.
Finally, we conclude that defendant was not deprived of effective assistance of counsel at theresentencing proceeding (see generally People v Baldi, 54 NY2d 137, 147 [1981]), andthat the court did not abuse its discretion in denying defense counsel's request for an adjournmentof that proceeding (see People v Ippolito, 242 AD2d 880 [1997], lv denied 91NY2d 874 [1997]). Present—Scudder, P.J., Smith, Lindley, Green and Martoche, JJ.