| People v Robinson |
| 2013 NY Slip Op 07992 [111 AD3d 963] |
| November 27, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Stevie P. Robinson, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy ofcounsel), for respondent.
Appeal by the defendant from a resentence of the County Court, Dutchess County(Forman, J.), imposed September 1, 2011, as amended November 22, 2011, upon hisconvictions of sodomy in the first degree, sexual abuse in the first degree (two counts),and endangering the welfare of a child, upon a jury verdict.
Ordered that the resentence, as amended, is reversed, on the law, and the matter isremitted to the County Court, Dutchess County, for resentencing in accordance herewith.
On December 7, 2000, the County Court sentenced the defendant to a determinateterm of 20 years of imprisonment for his conviction of sodomy in the first degree, adeterminate term of seven years of imprisonment for a conviction of sexual abuse in thefirst degree, to run concurrently, a determinate term of five years of imprisonment for asecond conviction of sexual abuse in the first degree, to run consecutively, and a definiteterm of one year of incarceration for his conviction of endangering the welfare of a child,which merged with the other sentences. However, the County Court failed to pronounceperiods of postrelease supervision, as required by Penal Law § 70.45. Therefore,pursuant to People vSparber (10 NY3d 457 [2008]), the County Court, in the presence of thedefendant, resentenced him on September 1, 2011. The County Court imposed a periodof five years of postrelease supervision for the sodomy conviction, a concurrentthree-year period of postrelease supervision for the first sexual abuse conviction, and aconsecutive three-year period of postrelease supervision for the second sexual abuseconviction (see Penal Law § 70.45 [2] [a]). The court directed that thethree-year period of postrelease supervision for the second sexual abuse conviction runconsecutive to the five-year period of postrelease supervision for the sodomy conviction,for a total of eight years of postrelease supervision. On November 22, 2011, the CountyCourt amended the resentence, directing that the periods of postrelease supervision wereto run concurrently with each other. On that date, the defendant was not present in thecourtroom.
The defendant's statutory right to be "personally present at the time sentence ispronounced" (CPL 380.40 [1]) extends to resentencing and to the amendment of asentence (see People vWeekes, 28 AD3d 499, 500 [2006]; People v Garrison, 9 AD3d 436 [2004]; People vHorton, 296 AD2d 466, 467 [2002]). Thus, the County Court's failure to have thedefendant produced at the proceeding on [*2]November22, 2011, at which it amended a resentence, violated the defendant's statutory right to bepresent at the time of sentence. Accordingly, we remit the matter to the County Court,Dutchess County, for resentencing in accordance with Penal Law § 70.45 (2-a)and (5) (c).
The defendant's remaining contentions are without merit. Dillon, J.P., Angiolillo,Dickerson and Cohen, JJ., concur.