People v Thomas

People v Thomas 2009 NY Slip Op 09163 [68 AD3d 514] December 10, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

The People of the State of New York, Respondent,
v
Edward Thomas, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Timothy C. Stone of counsel), for respondent.

Judgment of resentence, Supreme Court, New York County (Carol Berkman, J.), rendered October 14, 2008, resentencing defendant, as a second felony offender, to concurrent terms of three years and 1½ to 3 years, with five years' postrelease supervision, unanimously affirmed.

The court properly resentenced defendant to comply with the requirement that a term of postrelease supervision (PRS) be part of the court's oral pronouncement of sentence (see People v Sparber, 10 NY3d 457 [2008]). The resentencing was not untimely under Correction Law § 601-d (4) (d), because defendant's attorney consented to adjournments of the proceedings so that defendant could be produced. We reject defendant's argument that by providing that "[t]he designated person may, with counsel, knowingly consent to extend the time periods specified in paragraphs (c) and (d) of this subdivision," Correction Law § 601-d (4) (e) requires a defendant's personal consent. There is nothing in that language, or elsewhere, to suggest that the Legislature intended to add to the very narrow category of fundamental decisions to be made by a defendant personally (see People v Ferguson, 67 NY2d 383, 390 [1986]). In particular, "[s]cheduling matters are plainly among those for which agreement by counsel generally controls" (New York v Hill, 528 US 110, 115 [2000]).

In any event, we also conclude that when a resentencing does not comply with the time limits set forth in Correction Law § 601-d (4) (c) or (d), this does not entitle a defendant to have PRS removed from the sentence. These time limits do not affect a court's inherent power to correct its error in sentencing (see Correction Law § 601-d [8]; People v Pelsey, 25 Misc 3d 1205[A], 2009 NY Slip Op 51979[U], *3 [Sup Ct, Queens County 2009]; see also People v Sparber, 10 NY3d at 471-472).

Defendant failed to preserve his claims that the court lacked authority and jurisdiction to correct his sentence and that double jeopardy and due process protections rendered his resentencing unconstitutional, and we decline to review them in the interest of justice (see People v Rodriguez, 60 AD3d 452 [2009], lv granted 12 NY3d 928 [2009]). As an alternative [*2]holding, we find them without merit (see People v Hernandez, 59 AD3d 180 [2009], lv granted 12 NY3d 817 [2009]). Concur—Mazzarelli, J.P., Andrias, Saxe, Catterson and Acosta, JJ.