| People v Savery |
| 2011 NY Slip Op 09385 [90 AD3d 1505] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jason Savery,Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a resentence of the Cayuga County Court (Mark H. Fandrich, A.J.), renderedFebruary 15, 2011. Defendant was resentenced upon his conviction of burglary in the seconddegree.
It is hereby ordered that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted upon a jury verdict of, inter alia, burglary in thesecond degree (Penal Law § 140.25 [2]), and he appeals from the resentence on thatconviction. County Court (Corning, J.) sentenced defendant to various concurrent andconsecutive terms of imprisonment, but it failed to impose a period of postrelease supervisionwith respect to count 15, convicting defendant of burglary in the second degree, as required byPenal Law § 70.45 (1). Pursuant to Correction Law § 601-d, County Court(Fandrich, A.J.) resentenced defendant to add the requisite period of postrelease supervision.
Contrary to defendant's contention, the resentence does not violate the Double JeopardyClause of the U.S. Constitution (seePeople v Lingle, 16 NY3d 621, 630-631 [2011]; cf. People v Williams, 14 NY3d 198, 217 [2010], certdenied 562 US —, 131 S Ct 125 [2010]). Contrary to defendant's further contentions,the court did not lose jurisdiction to resentence him pursuant to CPL 380.80 (seeWilliams, 14 NY3d at 213), and the failure to comply with the time limits set forth inCorrection Law § 601-d (4) (c) or (d) does not require reversal (see People v Thomas, 68 AD3d514, 515 [2009]). " 'New York courts have the inherent authority to correct illegal sentences'. . . , regardless of the time limits set forth in [that statute]" (People v Becker, 72 AD3d 1290,1291 [2010], lv denied 15 NY3d 747 [2010]).
At the resentencing hearing, the court added a five-year period of postrelease supervision tocount 15, but it stated that "[a]ll other terms and conditions of [defendant's] sentenc[e] asimposed by the initial sentencing [c]ourt [would] remain the same." Defendant contends that,because the court did not specifically direct that the sentence on count 15 be served consecutivelyto the sentences imposed on counts 1 through 12, the sentence on count 15 must run concurrentlywith those sentences. We reject that contention. The original sentence imposed on count 15 wasto run consecutively to the sentences imposed on counts 1 through 12. A court resentencing adefendant pursuant to Correction Law § 601-d is not "supposed to do anything atresentencing [*2]other than correct the discrete error promptingthe resentencing in the first place" (Lingle, 16 NY3d at 634). The court therefore wasbound to reimpose the original sentence, aside from the addition of any required period ofpostrelease supervision. By stating that all other terms and conditions of the original sentencewould remain the same, the court effectively ordered the sentence imposed on count 15 to runconsecutively to the sentences imposed on counts 1 through 12, as directed in the originalsentence.
Contrary to defendant's remaining contention, the resentence is not illegal, and it is notunduly harsh or severe. We note, however, that the certificate of conviction fails to state thatdefendant was sentenced as a second felony offender and incorrectly reflects the nature of theconsecutive sentencing. The sentences originally imposed on counts 1 through 6 were to runconcurrently to each other; the sentences originally imposed on counts 7 through 12 were to runconcurrently to each other and consecutively to the sentences imposed on counts 1 through 6; andthe sentences originally imposed on counts 15 and 16 were to run concurrently to each other andconsecutively to the other sentences. The certificate of conviction, however, states that thesentences imposed on only counts 1, 7 and 15 are to run consecutively to each other. Thecertificate of conviction must therefore be amended accordingly (see e.g. People v Carrasquillo, 85AD3d 1618, 1620 [2011], lv denied 17 NY3d 814 [2011]; People v Afrika, 79 AD3d 1678,1680 [2010], lv denied 17 NY3d 791 [2011]). Present—Scudder, P.J., Smith,Green, Gorski and Martoche, JJ.