| People v Mills |
| 2014 NY Slip Op 03388 [117 AD3d 1555] |
| May 9, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRichard F. Mills, Appellant. |
Kathleen E. Casey, Barker, for defendant-appellant.
Richard F. Mills, defendant-appellant pro se.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a resentence of the Genesee County Court (Robert C. Noonan, J.),rendered January 31, 2011. Defendant was resentenced upon his conviction of attemptedassault in the first degree.
It is hereby ordered that the resentence so appealed from is affirmed.
Memorandum: Defendant was convicted upon a jury verdict of, inter alia, attemptedmurder in the first degree (Penal Law §§ 110.00, 125.27 [1] [a] [i])and attempted assault in the first degree (§§ 110.00, 120.10). Heappeals from a resentence with respect to the attempted assault conviction. During theresentencing proceeding, County Court, with the consent of the People (see§ 70.85), imposed the same sentence that was originally imposed, i.e.,without a period of postrelease supervision ([PRS] see Correction Law§ 601-d [4], [5]).
Initially, we note that defendant raises contentions in his pro se supplemental briefrelated to the underlying conviction. "Where, as here, the resentence is conducted for thepurpose of rectifying a Sparber error—that is, an error in failing to imposea required period of PRS (seePeople v Sparber, 10 NY3d 457, 464-465 [2008])—'[t]he defendant'sright to appeal is limited to the correction of errors or the abuse of discretion at theresentencing proceeding' " (People v Howard, 96 AD3d 1701, 1702 [2012], lvdenied 19 NY3d 1103 [2012], quoting People v Lingle, 16 NY3d 621, 635 [2011]; see People v Campbell, 111AD3d 1253, 1254 [2013]). Consequently, defendant's contentions in his pro sesupplemental brief with respect to the original judgment of conviction are not properlybefore us (see generally Peoplev Alvarado, 109 AD3d 1185, 1185 [2013], lv denied 22 NY3d 1086[2014]; People v Coble, 17AD3d 1165, 1165 [2005], lv denied 5 NY3d 787 [2005]).
Defendant further contends that the court erred in conducting the resentence in hisabsence and without assigning counsel (see Correction Law § 601-d[4] [a]; CPL 380.40 [1]; see alsoPeople v Robinson, 111 AD3d 963, 963-964 [2013]). That contention is notproperly before us because we may only "consider and determine any question of law orissue of fact involving error or defect . . . which may have adverselyaffected the appellant" (CPL 470.15 [1]). Here, the only issue presented at resentencingwas whether the court would impose a period of PRS, and the District Attorney hadalready informed the court and defendant in writing that the People would consent to thereimposition of the original sentence, i.e., without a period of PRS. Inasmuch as the courtreimposed that original sentence, "defendant was not adversely affected by any error,because the result, i.e., freedom from having to serve a term of PRS [with respect to thiscount of the indictment], was in his favor" (People v Covington, 88 AD3d 486, 486 [2011], lvdenied 18 NY3d 858 [2011]).
Finally, defendant's contention that Penal Law § 70.85 is anunconstitutional ex post facto law is not properly before us inasmuch as he failed tonotify the Attorney General that he would be raising that contention (see People v Williams, 82AD3d 1576, 1578 [2011], lv denied 17 NY3d 810 [2011]; People v Whitehead, 46 AD3d715, 716 [2007], lv denied 10 NY3d 772 [2008]; see generally Koziol v Koziol,60 AD3d 1433, 1434-1435 [2009], appeal dismissed 13 NY3d 763 [2009]).In any event, we note that defendant, in the context of a prior habeas corpus proceedingchallenging his resentencing, previously raised his contention that the statute isunconstitutional, and we rejected it on the ground that it is without merit (see People ex rel. Mills vLempke, 112 AD3d 1365, 1366 [2013], lv denied 22 NY3d 864 [2014];see also People v Pignataro,22 NY3d 381, 387 [2013], rearg denied 22 NY3d 1135 [2014]; People v Hibbert, 114 AD3d1134, 1134 [2014]).
All concur except Fahey, J., who dissents and votes to reverse in accordance with thefollowing memorandum: I respectfully dissent and would remit the matter for a furtherresentencing of defendant.
Fahey, J. (dissenting). My analysis begins with CPL 380.40 (1), which plainlyprovides that, "[i]n general . . . [,] the defendant must be personally presentat the time sentence is pronounced." CPL 380.50 (1), in turn, considers statements at thetime of sentencing, and it provides, inter alia, these mandates: "At the time ofpronouncing sentence, the court must accord the prosecutor an opportunity to make astatement with respect to any matter relevant to the question of sentence. The court mustthen accord counsel for the defendant an opportunity to speak on behalf of the defendant.The defendant also has the right to make a statement personally in his or her own behalf,and before pronouncing sentence the court must ask the defendant whether he or shewishes to make such a statement."
Both CPL 380.40 (1) and CPL 380.50 (1) apply to resentences (see People vGreen, 54 NY2d 878, 880 [1981]; People v Aloi, 78 AD3d 1546, 1547 [2010]; People vDennis [appeal No. 2], 6 AD3d 1211, 1212 [2004]). Moreover, the legislature builtno exception for futility or arrogance—which is a fair characterization ofdefendant's behavior—into CPL 380.40 or CPL 380.50, and I do not believe thatwe should find one here. To the extent that the First Department overlooked thosestatutes in the Sparber case of People v Covington (88 AD3d 486, 486-487 [2011], lvdenied 18 NY3d 858 [2011]; see People v Sparber, 10 NY3d 457 [2008]), I concludethat we should not rely on that precedent, but instead should honor and adhere to thesentencing procedures mandated by the legislature. There is no statutory basis for theexception proposed by the majority. The right to speak at one's resentencing should bedeemed fundamental. Present—Smith, J.P., Fahey, Peradotto, Sconiers andValentino, JJ.