| People v Brinson |
| 2011 NY Slip Op 08950 [90 AD3d 670] |
| December 6, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Christopher Brinson, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and KarenWigle Weiss of counsel; Cory Tischbein on the brief), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Queens County (Kohm,J.), imposed April 28, 2010, which, upon his conviction of robbery in the second degree, upon ajury verdict, imposed a period of postrelease supervision in addition to the determinate term ofimprisonment previously imposed on July 14, 2000.
Ordered that the resentence is affirmed.
The defendant was convicted of robbery in the second degree, robbery in the third degree,and grand larceny in the fourth degree. The sentencing court imposed a determinate term ofimprisonment of 10 years on the second-degree robbery conviction, but did not pronounce aperiod of postrelease supervision (hereinafter PRS). The court also imposed indeterminate termsof imprisonment of 3 to 6 years on the third-degree robbery count, and 2 to 4 years on the larcenyconviction, to run concurrently to each other but consecutively with the 10-year term. After thedefendant had been incarcerated for more than 10 years, he was resentenced on his conviction ofrobbery in the second degree, to add a period of PRS. The defendant appeals from the resentence,asserting that, because he had been incarcerated for more than 10 years, he had completed his10-year determinate sentence at the time of the resentencing and, thus, the resentence violated theprohibition against double jeopardy and his due process rights.
The Court of Appeals has held that "an expectation of finality arises for purposes of doublejeopardy when a defendant completes the lawful portion of an illegal sentence and exhausts anyappeal taken" (People v Lingle, 16NY3d 621, 630 [2011]; see Peoplev Williams, 14 NY3d 198, 217 [2010], cert denied 562 US —, 131 S Ct125 [2010]; see also People vDawkins, 87 AD3d 550 [2011]; People v Harris, 86 AD3d 543, 544 [2011], lv denied 17NY3d 859 [2011]). Further, resentencing to add a period of PRS prior to completion of asentence does not violate due process (see People v Lingle, 16 NY3d at 632-633;People v Dawkins, 87 AD3d at 550; People v Harris, 86 AD3d at 544). Here, thequestion is whether the defendant was still subject to his determinate sentence at the time he wasresentenced. We conclude that he was, and, therefore, affirm the resentence.
Penal Law § 70.30 provides a method for calculating an inmate's sentence when he orshe is serving more than one determinate or indeterminate sentence. As relevant here, pursuant[*2]to that statute, the minimum terms of the indeterminatesentences and the term of the determinate sentence are added together to arrive at an aggregatemaximum term of imprisonment (see Penal Law § 70.30 [1] [d]). The Court ofAppeals, in a decision made in the context of the Sex Offender Registration Act (hereinafterSORA), reasoned that "[a]lthough the primary function of [Penal Law § 70.30 was] toallow for the ready calculation of parole eligibility, . . . it [was] reasonable to applysection 70.30 to the question of whether a prisoner who has been given multiple sentences issubject to all his [or her] sentences for the duration of his [or her] term of imprisonment" (People v Buss, 11 NY3d 553, 557[2008]). The Court concluded that "[u]nderlying Penal Law § 70.30 is the proposition thatconcurrent sentences and consecutive sentences yield single sentences, either by merger [in thecase of concurrent sentences] or by addition [in the case of consecutive sentences]" (id. at557). The Court went on to hold that "for SORA purposes a prisoner serving multiple sentencesis subject to all the sentences, whether concurrent or consecutive, that make up the merged oraggregate sentence he [or she] is serving" (id. at 557-558).
The same reasoning should be applied in the context of the addition of a period of PRS to adefendant's sentence. The Court of Appeals has observed that, "[s]ince criminal defendants arecharged with knowledge of the relevant laws that apply to them, they are presumed to be awarethat a determinate prison sentence without a term of PRS is illegal and, thus, may be corrected bythe sentencing court at some point in the future" (People v Williams, 14 NY3d at 217[citation omitted]; see People v Lingle, 16 NY3d at 630). The defendant here is furthercharged with knowledge that, by statute (see Penal Law § 70.30), the New YorkState Department of Corrections and Community Supervision aggregates his sentences into asingle sentence. The defendant, therefore, has no reason to expect that discrete prison sentencesnonetheless survive such that, as he serves the aggregated sentence, he is sequentially completinghis punishment for each particular conviction. Thus, the defendant, who was still serving whatthe statute regards as a single, combined sentence at the time of the resentencing, did not have anexpectation of finality in the portion of the sentence attributable to his conviction of robbery inthe second degree.
Further, requiring the defendant to serve a part of his sentence, i.e., PRS, of which he wasalways cognizant, would not result in any significant prejudice and would not shock theconscience. The defendant was still serving a sentence which Penal Law § 70.30 treats as asingle sentence, and the defendant was aware that the determinate sentence which was combinedwith the indeterminate sentences to form the single sentence, was illegal. Thus, the resentencedid not violate the defendant's due process rights.
Accordingly, the Supreme Court properly resentenced the defendant to add a period of PRSto the determinate prison term imposed upon his conviction of robbery in the second degree.Skelos, J.P., Balkin, Eng and Sgroi, JJ., concur.