| People v Howard |
| 2012 NY Slip Op 05296 [96 AD3d 1691] |
| June 29, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Stanley L.Howard, Appellant. (Appeal No. 1.) |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a resentence of the Cayuga County Court (Thomas G. Leone, J.), rendered June30, 2011. Defendant was resentenced upon his conviction of robbery in the first degree (threecounts), criminal possession of a weapon in the second degree and criminal possession of stolenproperty in the fifth degree.
It is hereby ordered that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted following a jury trial of three counts of robbery inthe first degree (Penal Law § 160.15 [2]-[4]), and one count each of criminal possession ofa weapon in the second degree (§ 265.03 [former (2)]), and criminal possession of stolenproperty in the fifth degree (§ 165.40), and he appeals from a resentence with respect tothose convictions. County Court (Corning, J.) originally sentenced defendant as a second felonyoffender to determinate concurrent terms of imprisonment, the longest of which was 15 years, butfailed to impose periods of postrelease supervision (PRS) for the determinate terms as requiredby Penal Law § 70.45 (1). To remedy that error (see Correction Law §601-d), County Court (Leone, J.) later resentenced defendant to the same terms of imprisonmentwith corresponding periods of PRS.
Because defendant was still serving his original sentence at the time he was resentenced, wereject his contention that the resentence violated his rights under the Double Jeopardy Clause ofthe Fifth Amendment (see People vLingle, 16 NY3d 621, 630-631 [2011]; People v Nunes, 89 AD3d 1559, 1560 [2011], lv denied 18NY3d 885 [2012]; cf. People vWilliams, 14 NY3d 198, 217-220 [2010], cert denied 562 US —, 131 SCt 125 [2010]; People v Kelly, 96 AD3d 1700 [2012]). We likewise rejectdefendant's contention that there was a violation of CPL 380.30 based on the delay between hisoriginal sentencing and his resentencing that deprived County Court (Leone, J.) of its jurisdictionto resentence him. Where, as here, the "defendant[ ] w[as] resentenced within a reasonable timeafter [the Department of Correctional Services] notified the court[ ] that" he qualified as a "'designated person[ ]' under Correction Law § 601-d," there is no violation of CPL 380.30(Williams, 14 NY3d at 213).[*2]
Although defendant's further contention that the courtfailed to resentence him within the time limits set forth in Correction Law § 601-d (4) (a)and (c) is factually correct, it is well settled that such failures do not provide a basis for reversal(see People v Savery, 90 AD3d1505, 1505 [2011], lv denied 18 NY3d 928 [2012]; People v Becker, 72 AD3d 1290,1291 [2010], lv denied 15 NY3d 747 [2010]; People v Thomas, 68 AD3d 514, 515 [2009]). Finally, we rejectdefendant's contention that the resentence imposed, with the addition of terms of PRS,constituted cruel and unusual punishment. The court was statutorily mandated to imposefive-year terms of PRS as to defendant's convictions of robbery and criminal possession of aweapon (see Penal Law § 70.06 [former (6)]; § 70.45 [former (1)], [former(2)]), and it cannot be said that those terms were " 'grossly disproportionate to the crime[s]' " (People v Holmquist, 5 AD3d1041, 1042 [2004], lv denied 2 NY3d 800 [2004]; see People v Wright, 85 AD3d1642, 1644 [2011], lv denied 17 NY3d 863 [2011]). We have considered defendant'sremaining contentions and conclude that they are without merit. Present—Smith, J.P.,Fahey, Peradotto, Lindley and Martoche, JJ.