| People v Porter |
| 2012 NY Slip Op 03684 [95 AD3d 1450] |
| May 10, 2012 |
| Appellate Division, Third Department |
| 2—The People of the State of New York, Respondent, vLarry Porter, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered January 21, 2011, which resentenced defendant following hisconviction of the crime of assault in the second degree (two counts).
In September 2000, while an inmate at Great Meadow Correctional Facility in WashingtonCounty, defendant was convicted of two counts of assault in the second degree and sentenced asa second felony offender to concurrent prison terms of seven years (People v Porter, 304AD2d 845 [2003], lv denied 100 NY2d 565 [2003]). Upon learning that the mandatoryperiods of postrelease supervision had not been imposed, County Court resentenced defendant tohis original sentence plus five years of postrelease supervision. Defendant appeals.
Although Penal Law § 70.85 permits County Court to reimpose the original sentence,without adding any postrelease supervision, the court may do so only with the People's consent.Here, because there is no indication in the record that the People gave such consent, althoughthey had the opportunity to do so, the court was required by law to impose upondefendant—a second felony offender convicted of violent felony offenses—adeterminate sentence with postrelease supervision (see Penal Law § 70.00 [6];§ 70.06 [1] [a], [b]; § 70.45 [1]; see also People v Wright, 85 AD3d 1316, 1316 [2011]). As fordefendant's remaining contentions, the resentencing did not amount to a violation of his doublejeopardy rights—indeed, a determinate [*2]sentenceimposed without a period of postrelease supervision is an illegal sentence (see People v Williams, 14 NY3d198, 217 [2010], cert denied 562 US —, 131 S Ct 125 [2010])—and weare not persuaded that defendant was deprived of the effective assistance of counsel (see generally People v Caban, 5 NY3d143, 152 [2005]; People v Wright, 85 AD3d at 1317).
Rose, J.P., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.