| People v Wright |
| 2011 NY Slip Op 04776 [85 AD3d 1316] |
| June 9, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RashayWright, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered May 28, 2009, which resentenced defendant following his conviction of the crimes ofrobbery in the first degree (two counts) and criminal trespass in the first degree.
After a jury trial in 2001, defendant was found guilty of two counts of robbery in the firstdegree and one count of criminal trespass in the first degree. County Court sentenced defendant,as a second felony offender, to an aggregate prison term of 10 years. In 2009, the court, havinglearned that it failed to impose the mandatory period of postrelease supervision, resentenceddefendant to his original sentence plus five years of postrelease supervision. Defendant appealsand we affirm.
Defendant's contention that County Court erred when it advised him that there were no othersentencing options is unavailing. Defendant's argument is premised on Penal Law § 70.85,which provides that, under the circumstances here, "the court may . . .re-impose the originally imposed determinate sentence of imprisonment without any term ofpost-release supervision" (emphasis added). While, on its face, Penal Law § 70.85 is notlimited to those cases in which a defendant pleaded guilty and would otherwise be entitled towithdraw his or her plea, that statute was not intended to provide an alternative to a court'sexercise of its plenary power to correct an illegal sentence imposed upon a defendant followinghis or her conviction after a trial. In fact, [*2]the court maydecline to impose postrelease supervision upon resentencing only with the People's consent(see Penal Law § 70.85). In this case, there is no indication in the record that thePeople gave such consent. Under these circumstances, the court did not fail to inform defendantof other resentencing options; there were none, as defendant was a second felony offenderconvicted of a violent felony offense and, thus, a determinate prison sentence and a period ofpostrelease supervision of five years was required by law (see Penal Law § 70.02[1] [b]; [2]; § 70.06 [6]; § 70.45).
Nor do we find merit to defendant's contention that he was denied the effective assistance ofcounsel. As previously discussed, County Court's resentence was correct, and the record revealsthat counsel provided meaningful representation, including making a request for and obtaining arecess in order to fully explain to defendant the resentencing proceedings (see generally People v Caban, 5 NY3d143, 152 [2005]; People v Baldi, 54 NY2d 137, 147 [1981]).
Peters, J.P., Rose, Malone Jr. and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.