| People v Blunt |
| 2012 NY Slip Op 01681 [93 AD3d 675] |
| March 6, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Robert Blunt, Appellant. |
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Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Kevin C. King ofcounsel), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Nassau County (Honorof,J.), imposed March 9, 2011, which, upon his conviction of burglary in the second degree, robberyin the third degree, and sexual abuse in the first degree, upon his plea of guilty, imposed a periodof postrelease supervision of five years on the count of sexual abuse in the first degree in additionto the sentence of imprisonment originally imposed on March 13, 2000, as amended April 3,2000.
Ordered that the resentence is affirmed.
In 1999 the defendant was charged with burglary in the second degree, robbery in the thirddegree, and sexual abuse in the first degree. On February 10, 2000, the defendant entered a pleaof guilty to all charges in the indictment. At the plea proceeding, the Supreme Court informed thedefendant that, based on the top count of the indictment, burglary in the second degree, he faceda maximum possible determinate sentence of imprisonment of 15 years, plus five yearspostrelease supervision. The defendant acknowledged that he understood. The Supreme Court'sonly sentencing promise was that it would impose concurrent terms of imprisonment. On March13, 2000, the Supreme Court sentenced the defendant. With regard to postrelease supervision, theSupreme Court imposed a five-year period of postrelease supervision on the top count of theindictment, and a period of three years postrelease supervision on the count of sexual abuse in thefirst degree. On April 3, 2000, the Supreme Court conducted resentencing proceedings to correctan error not relevant here. On March 9, 2011, the Supreme Court, again exercising its inherentauthority to correct sentencing errors and unlawful or illegal sentences (see People vWright, 56 NY2d 613, 614 [1982]; People v Minaya, 54 NY2d 360 [1981], certdenied 455 US 1024 [1982]; Peoplev Prendergast, 71 AD3d 1055, 1055 [2010], affd sub nom. People v Lingle, 16NY3d 621 [2011]; People vRubendall, 4 AD3d 13, 17 [2004]), conducted a second resentencing proceeding toimpose a five-year period of postrelease supervision on the count of sexual abuse in the firstdegree since, as a second violent felony offender, the defendant was not eligible for a three-yearperiod of postrelease supervision on that count (see Penal Law § 70.45 [2]; People v Padilla, 50 AD3d 928,929 [2008]). The defendant appeals from the second resentencing.
In People v Catu (4 NY3d242 [2005]), the Court of Appeals held that postrelease supervision is a direct consequenceof certain criminal convictions. "As such, a defendant who [*2]pleads guilty to a crime resulting in a determinate sentence ofimprisonment must be aware of the postrelease supervision component for the plea and sentenceto be knowingly, voluntarily, and intelligently chosen from among the options available to thedefense" (People v Monk, 83 AD3d35, 37 [2011]; see People v Catu, 4 NY3d at 245).
Contrary to the defendant's contention, under the circumstances of this case, the imposition atthe second resentencing of a five-year period of postrelease supervision on the count of sexualabuse in the first degree did not constitute a Catu error (see People v Catu, 4 NY3d 242[2005]). The defendant was informed at the plea proceeding that he faced a five-year period ofpostrelease supervision. The defendant acknowledged as much and thereafter entered a plea ofguilty. Thus, at the time he decided to enter the plea of guilty, the defendant was "aware of thepostrelease supervision component for the plea and sentence" (People v Monk, 83 AD3dat 37) as a general matter, and specifically aware that he faced a five-year period of postreleasesupervision based on the top count of the indictment. Accordingly, this is not a case where thedefendant was not made aware of the fact that he faced a period of postrelease supervision (see People v Catu, 4 NY3d 242[2005]), where the defendant was erroneously promised a lesser term of postrelease supervision(see People v Hollis, 309 AD2d 764, 765 [2003]), or where he was not informed of thespecific period of postrelease supervision he faced (see People v Boyd, 12 NY3d 390 [2009]). Moreover, the period ofpostrelease supervision imposed on the count of sexual abuse in the first degree merged byoperation of law with the five-year period of postrelease supervision on the count of burglary inthe second degree (see Penal Law § 70.45 [5] [c]). Therefore, neither the erroneousimposition of a three-year period of postrelease supervision on the conviction of sexual abuse inthe first degree, nor the subsequent resentencing to the proper five-year period of postreleasesupervision on that conviction, had any practical effect on the defendant's sentence.
The defendant's remaining contentions are either not properly before this Court or withoutmerit. Angiolillo, J.P., Dickerson, Austin and Cohen, JJ., concur.