People v Covington

People v Covington 2011 NY Slip Op 07135 Decided on October 11, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 11, 2011
Mazzarelli, J.P., Friedman, Catterson, Moskowitz, Abdus-Salaam, JJ.
5667 5954/03

[*1]The People of the State of New York, Respondent,

v

Ronnie Covington, Defendant-Appellant.



 
Robert S. Dean, Center for Appellate Litigation, New York
(David J. Klem of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (John B.F.
Martin of counsel), for respondent.

Order and judgment of resentence, Supreme Court, New York County (Richard D. Carruthers, J.), entered on or about October 30, 2008, which, to the extent appealable, reimposed defendant's original prison sentence without imposing a period of postrelease supervision, unanimously affirmed.

We assume, without deciding, that this appeal is properly before us as an appeal from a judgment of resentence (see CPL 450.30[3]; People v King, 84 AD3d 473 [2011]), and we find it unnecessary to decide the appealablity issues raised by the People. However, defendant is not entitled to any relief.

Defendant's original sentence on his underlying conviction unlawfully omitted the required period of postrelease
supervision. Following postconviction motion practice and the Court of Appeals' decision in People v Sparber (10 NY3d 457 [2008]), the sentencing court determined that it would let the original sentence stand, without adding PRS. However, the court did not employ the procedure set forth in Penal Law § 70.85, whereby, with the People's consent, the court may correct a Sparber error by reimposing the original sentence without PRS.

Defendant seeks a remand for a resentencing hearing, arguing that the resentencing, or purported resentencing, was procedurally defective in various respects. However, defendant was not adversely affected by any error, because the result, i.e., freedom from having to serve a term of PRS, was in his favor (see CPL 470.15[1]; People v Acevedo, 17 NY3d 297, 302-303 [2011]).

In any event, defendant would not derive any practical benefit from a remand. To the extent that defendant seeks a proceeding at which he may ask the resentencing court for a lower prison sentence, that avenue of relief is foreclosed by the Court
of Appeals' decision in People v Lingle (16 NY3d 621, 634-635 [2011]). This Court likewise has no authority to revisit defendant's prison sentence on this appeal (id. at 635).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 11, 2011

CLERK