| People v Smikle |
| 2013 NY Slip Op 08745 [112 AD3d 1357] |
| December 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JasonSmikle, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a resentence of the Erie County Court (Michael F. Pietruszka, J.),rendered January 19, 2012. Defendant was resentenced by imposing periods ofpostrelease supervision upon his conviction of attempted murder in the second degree.
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 [1]), four counts of attempted murder in thesecond degree (§§ 110.00, 125.25 [1]), and five counts of criminalpossession of a weapon in the fourth degree (§ 265.01 [2]), and he appeals from aresentence with respect to that conviction. County Court originally sentenced defendantto, inter alia, consecutive and concurrent determinate terms of imprisonment of eightyears for the attempted murder counts, and we affirmed the judgment of conviction (People v Smikle, 1 AD3d883 [2003], lv denied 1 NY3d 634 [2004]). The sentencing court had failed,however, to impose periods of postrelease supervision with respect to the attemptedmurder counts as required by Penal Law § 70.45 (1). To remedy that error(see Correction Law § 601-d), the court resentenced defendant prior to thecompletion of his sentence to the same terms of imprisonment and imposed the requisiteperiods of postrelease supervision.
We reject defendant's contentions that the imposition of postrelease supervision wasirrational and that by our prior decision we implicitly affirmed the legality of hissentence, thus precluding the court from imposing periods of postrelease supervision atresentencing. To the contrary, as noted above, postrelease supervision is mandated bystatute (see Penal Law § 70.45 [1]; see generally People v Davis, 37 AD3d 1179, 1180[2007]), and 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 Fomby, 103 AD3d 1100, 1100 [2013], lv denied 21 NY3d 1073[2013]; see People vSparber, 10 NY3d 457, 472 [2008]; see generally People v Howard, 96 AD3d 1691, 1692[2012], lv denied 19 NY3d 1103 [2012]).
Defendant failed to preserve for our review his contention that the 10½-yeargap between his original sentence and his resentence violated his statutory right to havehis sentence pronounced "without unreasonable delay" (CPL 380.30 [1]; see People v Diggs, 98 AD3d1255, [*2]1256 [2012], lv denied 20 NY3d986 [2012]), and his constitutional due process rights (see People v Thomas, 68AD3d 514, 515 [2009]), and we decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]). Finally, the periods of postrelease supervision do not render the sentence undulyharsh or severe. Present—Centra, J.P., Peradotto, Carni, Sconiers and Whalen, JJ.