| People v Faeth |
| 2013 NY Slip Op 04156 [107 AD3d 1426] |
| June 7, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vChristopher T. Faeth, Appellant. |
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Appeal from a resentence of the Wayne County Court (John B. Nesbitt, J.), renderedApril 19, 2012. Defendant was resentenced upon his conviction of robbery in the firstdegree.
It is hereby ordered that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted, following a jury trial, of murder in thesecond degree (Penal Law § 125.25 [2]) and robbery in the first degree (§160.15 [1]). On a prior appeal, we affirmed defendant's conviction (People vFaeth, 298 AD2d 987 [2002], lv denied 99 NY2d 558 [2002]), anddefendant now appeals from a resentence pursuant to Correction Law § 601-d andPenal Law § 70.45. County Court (Sirkin, J.), originally sentenced defendant as asecond felony offender to consecutive terms of incarceration of 25 years to life on theconviction of depraved indifference murder and to a determinate term of incarceration of20 years on the conviction of robbery, but failed to impose a period of postreleasesupervision (PRS) with respect to the robbery conviction as required by Penal Law§ 70.45 (1). To remedy that error (see Correction Law § 601-d),County Court (Nesbitt, J.) later resentenced defendant to the same 20-year term ofincarceration on the robbery conviction, together with a five-year period of PRS.
We reject defendant's contention that the court erred in denying his request for newcounsel prior to resentencing him. Defendant " 'did not establish a serious complaintconcerning defense counsel's representation and thus did not suggest a serious possibilityof good cause for substitution [of counsel]' " (People v Adger, 83 AD3d 1590, 1591 [2011], lvdenied 17 NY3d 857 [2011]; see People v Austin, 38 AD3d 1246, 1247 [2007], lvdenied 8 NY3d 981 [2007]). Even assuming, arguendo, that defendant's contentionthat there was a conflict of interest constitutes a complaint that there was a "completebreakdown of communication and lack of trust" between defendant and his currentattorney, we conclude that such a contention would not necessarily warrant substitutionbut, rather, the court would be required to conduct a minimal inquiry to determinewhether substitution was appropriate (People v Sides, 75 NY2d 822, 825[1990]). Contrary to defendant's further contention, the court made the requisite"minimal inquiry" into his reasons for requesting new counsel (Adger, 83 AD3dat 1592 [internal quotation marks omitted]; see People v Porto, 16 NY3d 93, 99-100 [2010]).
We further conclude that the court's resentencing of defendant was proper.Correction Law § 601-d "permit[s] [the Department of Correctional Services(DOCS)] to notify sentencing [*2]courts that PRS hadnot been properly imposed in certain cases . . . and to have th[o]sedefendants returned to the original sentencing courts for modification of their sentencesto include PRS" (People vWilliams, 14 NY3d 198, 208 [2010], cert denied 562 US —, 131S Ct 125 [2010]). "A court resentencing a defendant pursuant to Correction Law §601-d is not 'supposed to do anything at resentencing other than correct the discrete errorprompting the resentencing in the first place' " (People v Savery, 90 AD3d 1505, 1506 [2011], lvdenied 18 NY3d 928 [2012], quoting People v Lingle, 16 NY3d 621, 634 [2011]). Here,although a five-year period of PRS with respect to the robbery conviction was mandatorypursuant to Penal Law § 70.45 (1), County Court (Sirkin, J.) did not impose anyperiod of PRS. Judge Nesbitt simply corrected defendant's sentence by imposing therequired five years of PRS in accordance with Correction Law § 601-d (seeSavery, 90 AD3d at 1506).
Finally, because defendant was still serving his original sentence at the time he wasresentenced, we reject his contention that the resentence violated his rights under theDouble Jeopardy Clause of the Fifth Amendment (see Lingle, 16 NY3d at630-631; Williams, 14 NY3d at 217; see also Savery, 90 AD3d at 1506).Present—Smith, J.P., Fahey, Carni, Sconiers and Whalen, JJ.