| People v Johnson |
| 2012 NY Slip Op 03298 [94 AD3d 1496] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MarcheJohnson, 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.), renderedApril 12, 2011. Defendant was resentenced upon his conviction of robbery in the second degree.
It is hereby ordered that the resentence so appealed from is affirmed.
Memorandum: Defendant was convicted upon his plea of guilty of robbery in the seconddegree (Penal Law § 160.10 [1]), and he appeals from the resentence on that conviction.County Court (Corning, J.) originally sentenced defendant as a second violent felony offender toa determinate term of imprisonment of 10 years, but it failed to impose a period of postreleasesupervision, as required by Penal Law § 70.45 (1). The court (Fandrich, A.J.) resentenceddefendant to the same term of imprisonment to be followed by five years of postreleasesupervision.
Defendant failed to preserve for our review his contention that the court should haveassigned defendant substitute counsel, inasmuch as the record reflects that both defendant and thecourt understood that defendant sought an adjournment in order to retain counsel and did notrequest new assigned counsel (see CPL 470.05 [2]). We decline to exercise our power toreview that contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]).
We agree with defendant, however, that the court failed to conduct a searching inquiry toensure that defendant's waiver of the right to counsel was unequivocal, voluntary and intelligent(see People v Smith, 92 NY2d 516, 520 [1998]). Thus, "[t]he sentencing court erred bypermitting defendant to represent himself at his ultimate sentencing proceeding" (People v Adams, 52 AD3d 243,243 [2008], lv denied 11 NY3d 829 [2008]). That error, however, does not warrantreversal of defendant's resentence because "the tainted proceeding had no adverse impact. . . , and a remand for resentencing would serve no useful purpose" (id. at244; see generally People vWardlaw, 6 NY3d 556, 559 [2006]). Indeed, defense counsel, speaking on behalf ofdefendant, admitted that defendant was advised during the plea proceedings that a period ofpostrelease supervision would be imposed, and thus there were no issues to be litigated withrespect to defendant's sentence (seegenerally People v Lingle, 16 NY3d 621, 634-635 [2011]; cf. People v Verhow, 83 AD3d1528, 1528-1529 [2011]).[*2]
We have considered defendant's remaining contentionsand conclude that they are without merit.
All concur except Fahey, J., who dissents and votes to reverse in accordance with thefollowing memorandum.
Fahey, J. (dissenting). I respectfully dissent. In my view, the record of the February 15, 2011proceeding reflects that the People stipulated that the court may resentence defendant withoutimposing a period of postrelease supervision pursuant to Penal Law § 70.85 (seePeople v Swanston, 277 AD2d 600, 602 [2000], lv denied 96 NY2d 739 [2001];see also CPLR 2104; CPL 60.10). I would therefore reverse the resentence and remit thematter to County Court for further resentencing. Present—Centra, J.P., Fahey, Lindley,Sconiers and Martoche, JJ.