| People v King |
| 2011 NY Slip Op 03735 [84 AD3d 473] |
| May 5, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Joesun King, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Dana Poole of counsel), forrespondent.
Judgment of resentence, Supreme Court, New York County (Carol Berkman, J.), renderedSeptember 25, 2008, resentencing defendant to a term of nine years, with five years' postreleasesupervision, unanimously reversed, on the law, the resentence vacated, and the original sentencewithout postrelease supervision reinstated. Appeals from orders (same court and Justice), enteredon or about January 12, 2009, which denied defendant's motion to vacate the judgment ofresentence, and on or about June 24, 2010, which denied defendant's CPL 440.20 motion to setaside the resentence, unanimously dismissed, without costs, as academic.
Defendant is entitled to relief under People v Williams (14 NY3d 198 [2010]), which invalidates theimposition of postrelease supervision (PRS) upon resentencing of defendants who have beenreleased after completing their terms of imprisonment. The original sentencing record does notsupport the People's assertion, and the resentencing court's conclusion, that PRS was already partof the original sentence. That record reveals that, in a colloquy with defendant regarding a pleawithdrawal issue, the court made a casual remark that apparently referred to PRS. This fell farshort of being the formal pronouncement of sentence required by statute (CPL 380.50 [1]) and byPeople v Sparber (10 NY3d457 [2008]). Instead, the formal pronouncement of sentence was limited to a prison term.
We have considered and rejected the People's procedural arguments. The action taken onSeptember 25, 2008, regardless of how denominated by the court, was a judgment of resentencethat added PRS to the existing sentence. Defendant has the right to appeal that judgment, and itbrings up for review the court's determination—which we find erroneous—that ithad already imposed PRS. In any event, were we not dismissing as academic the appeal from theJune 24, [*2]2010 order which denied relief under CPL 440.20,we would reverse that order as well, for the reasons stated above. Concur—Tom, J.P.,Mazzarelli, Acosta, DeGrasse and RomÁn, JJ.