| People v Hibbert |
| 2014 NY Slip Op 00750 [114 AD3d 1134] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vEverton Hibbert, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Amanda L. Dreher of counsel), forrespondent.
Appeal from a resentence of the Supreme Court, Monroe County (Joseph D.Valentino, J.), rendered August 29, 2011. Defendant was resentenced upon hisconviction of murder in the second degree and criminal possession of a weapon in thesecond degree.
It is hereby ordered that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a resentence upon his conviction, in 2000, ofmurder in the second degree (Penal Law § 125.25 [1]) and criminal possession of aweapon in the second degree (§ 265.03 [former (2)]). It is undisputed that, at thetime of his plea of guilty to those crimes, Supreme Court (Mark, J.) failed to advisedefendant that he was subject to a period of postrelease supervision (PRS) with respect tothe count of criminal possession of a weapon. Supreme Court (Valentino, J.) was alertedto the error pursuant to Correction Law § 601-d and, with the consent of thePeople, resentenced defendant pursuant to Penal Law § 70.85 to the bargained-fordeterminate term of 15 years of imprisonment without PRS to run concurrently with theindeterminate term of imprisonment imposed on the murder count. Defendant failed topreserve for our review his present contention that Penal Law § 70.85 isunconstitutional (see CPL 470.05 [2]) and, in any event, his contention is notproperly before us because he failed to provide notice to the Attorney General of hischallenge to the constitutionality of the statute (see CPLR 1012 [b]; ExecutiveLaw § 71 [3]; seegenerally People v Williams, 82 AD3d 1576, 1578 [2011], lv denied 17NY3d 810 [2011]). We nevertheless note that the Court of Appeals has determined that"section 70.85 is a constitutionally permissible legislative remedy for the defectiveness ofthe plea" (People v Pignataro, 22 NY3d 381, 387 [2013]).Present—Scudder, P.J., Smith, Centra, Carni and Whalen, JJ.