People v Battle

People v Battle 2010 NY Slip Op 05019 [74 AD3d 982] June 8, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2010

The People of the State of New York, Respondent,
v
Gerard Battle, Appellant.

—[*1] Lynn W. L. Fahey, New York, N.Y. (Jonathan Garvin of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeannette Lifschitz, and Suzanne D. O'Hare of counsel), for respondent.

Appeal by the defendant from a resentence of the Supreme Court, Queens County (Buchter, J.), imposed October 16, 2008, upon his conviction of manslaughter in the first degree, upon his plea of guilty.

Ordered that the resentence is affirmed.

On October 18, 2004, the defendant pleaded guilty to manslaughter in the first degree and was sentenced on January 11, 2005, to a determinate term of 12 years imprisonment. In 2008 the defendant was brought before the Supreme Court for resentencing, so that the mandatory period of postrelease supervision (hereinafter PRS) could be imposed (see Penal Law § 70.45).

Contrary to the defendant's contention, the resentencing court was not required to exercise its discretion to consider whether the sentence as a whole was appropriate in view of the fact that the sentence would now include a period of PRS. Since the original sentencing court is presumed to have been aware that the sentence would include a period of PRS, and the defendant has not overcome that presumption, no such exercise of discretion was warranted in this case (see People v Prendergast, 71 AD3d 1055 [2010]; People v Allen, 66 AD3d 792 [2009]; People v Stewartson, 63 AD3d 966 [2009]). Skelos, J.P., Covello, Hall and Sgroi, JJ., concur.