| People v Ashley |
| 2011 NY Slip Op 03146 [83 AD3d 1295] |
| April 21, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Patrick R.Ashley, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), forrespondent.
Appeal from a judgment of the County Court of St. Lawrence County (Rogers, J.), renderedMarch 1, 2010, which resentenced defendant following his conviction of the crimes of robbery inthe second degree (two counts).
In 1999, defendant was convicted of two counts of robbery in the second degree and wassentenced to two concurrent terms of five years in prison. In 2009, after he had completed hissentence for these crimes, he moved to set aside the sentence on the ground that it was illegalbecause County Court did not specifically impose a period of postrelease supervision (see People v Williams, 14 NY3d198 [2010], cert denied 562 US —, 131 S Ct 125 [2010]). At the time of thismotion, defendant was serving a prison sentence on an unrelated conviction. County Courtgranted defendant's motion, resentenced him to the original term of imprisonment and, with thePeople's consent, did not impose any period of postrelease supervision. Defendant now appeals.
Defendant argues that County Court was silent concerning the manner in which the terms ofimprisonment imposed upon resentencing were to run with respect to the term of imprisonmenthe was serving at the time and that, pursuant to Penal Law § 70.25 (1) (a), all prison termsshould run concurrently by operation of law. Notably, the statute provides that, "when a personwho is subject to any undischarged term of imprisonment imposed at a previous time. . . is sentenced to an additional term of imprisonment" and the court fails tospecify the manner in which a sentence imposed by it is to run, the "sentence shall runconcurrently with all other terms" (Penal Law § 70.25 [1] [a]). Here, County Court made itclear [*2]on the record that the sentences imposed uponresentencing were to run concurrently to one another, but not to the other prison term thatdefendant was then serving. Contrary to defendant's claim, County Court was not silent withrespect to the manner in which the sentences imposed upon resentencing were to run and,therefore, we reject his assertion that they should have run concurrently to his existing sentencepursuant to Penal Law § 70.25 (1) (a) (see e.g. People v LaTulip, 73 AD3d 1345, 1346 [2010]).Accordingly, we find no reason to disturb the judgment of conviction.
Peters, J.P., Rose, Malone Jr., Stein and Garry, JJ., concur. Ordered that the judgment isaffirmed.