| People v Fomby |
| 2013 NY Slip Op 00600 [103 AD3d 1100] |
| February 1, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v HarryN. Fomby, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a resentence of the Supreme Court, Erie County (Penny M. Wolfgang,J.), rendered March 28, 2011. Defendant was resentenced upon his conviction of robberyin the second degree (two counts).
It is hereby ordered that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted following a jury trial of two counts ofrobbery in the second degree (Penal Law § 160.10 [1], [2] [b]), and he appealsfrom a resentence with respect to those convictions. Supreme Court (Tills, A.J.)originally sentenced defendant to concurrent determinate 15-year terms of imprisonment,but failed to impose periods of postrelease supervision (PRS) as required by Penal Law§ 70.45 (1). To remedy that error (see Correction Law § 601-d),Supreme Court (Wolfgang, J.) later resentenced defendant to the same terms ofimprisonment with corresponding periods of PRS prior to the completion of theoriginally-imposed sentence. Contrary to defendant's contention, the resentence did notviolate his due process rights (see People v Lingle, 16 NY3d 621, 630-631 [2011]).Furthermore, we conclude that "in resentencing defendant the court simply corrected theerror . . . made at the time of the original sentence and thus that theresentence was proper" (Peoplev Mehmel, 98 AD3d 1256, 1256 [2012]; see People v Sparber, 10 NY3d 457, 472 [2008]; see generally People vHoward, 96 AD3d 1691, 1692 [2012], lv denied 19 NY3d 1103[2012]). The imposition of the terms of PRS does not render the sentence unduly harshor severe. Present—Smith, J.P., Peradotto, Lindley, Whalen and Martoche, JJ.