| People v Adams |
| 2011 NY Slip Op 05721 [85 AD3d 1192] |
| June 28, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AxelAdams, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel ofcounsel; Gamaliel Marrero on the brief), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Kings County (Gary, J.),imposed November 3, 2008, which, upon his conviction of robbery in the first degree andattempted robbery in the second degree, upon a jury verdict, imposed a period of postreleasesupervision of five years in addition to the concurrent determinate terms of imprisonmentpreviously imposed on March 21, 2000.
Ordered that the resentence is affirmed.
The defendant was convicted, upon a jury verdict, of robbery in the first degree andattempted robbery in the second degree. On March 21, 2000, the defendant was sentenced, as asecond felony offender, to concurrent determinate terms of imprisonment of 15 years and sevenyears, respectively. In July 2008, while still incarcerated and serving his original sentence, thedefendant moved pro se to vacate his sentence as illegal pursuant to CPL 440.20 because themandatory five-year term of postrelease supervision (hereinafter PRS) had not been imposed.The defendant sought resentencing to impose the mandatory five-year term of PRS, but requestedthat his prison sentence be reduced in light of the PRS term. The People conceded thatresentencing was required, but opposed that branch of the motion which was to reduce the prisonsentence. At resentencing, the Supreme Court imposed the mandatory five-year term of PRS andnoted that it had no discretion to revisit the original prison sentence.
Since the defendant had not yet completed the original sentence when he was resentenced,the resentencing to a term including the statutorily required period of PRS did not subject him todouble jeopardy or violate his right to due process (see People v Lingle, 16 NY3d 621 [2011]; People v Young, 78 AD3d 744[2010]; People v Ragbirsingh, 78AD3d 738 [2010]; cf. People vWilliams, 14 NY3d 198 [2010], cert denied 562 US —, 131 S Ct 125[2010]). As resentencing was limited to correcting the erroneous failure to impose PRS at theoriginal sentencing, the Supreme Court properly concluded that it had no discretion to revisit theoriginal sentence, and we have no authority to reduce the original sentence (see People v Lingle, 16 NY3d 621[2011]; People v Sparber, 10 NY3d457 [2008]).
The defendant's remaining contention does not warrant reversal. Prudenti, P.J., Eng, Hall andLott, JJ., concur.