People v King

People v King 2011 NY Slip Op 03735 Decided on May 5, 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 May 5, 2011
Tom, J.P., Mazzarelli, Acosta, DeGrasse, Román, JJ.
1921/99 4994B

[*1]4994-The People of the State of New York, 4994A-Respondent,

v

Joesun King, Defendant-Appellant.



 
Robert S. Dean, Center for Appellate Litigation, New York
(John Vang of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Dana Poole
of counsel), for respondent.

Judgment of resentence, Supreme Court, New York County (Carol Berkman, J.), rendered September 25, 2008, resentencing defendant to a term of 9 years, with 5 years' postrelease supervision, unanimously reversed, on the law, the resentence vacated, and the original sentence without postrelease supervision reinstated. Appeals from orders (same court and Justice), entered on or about January 12, 2009, which denied defendant's motion to vacate the judgment of resentence, and on or about June 24, 2010, which denied defendant's CPL 440.20 motion to set aside the resentence, unanimously dismissed, without costs, as academic.

Defendant is entitled to relief under People v Williams (14 NY3d 198 [2010]), which invalidates the imposition of postrelease supervision upon resentencing of defendants who have been released after completing their terms of imprisonment. The original sentencing record does not support the People's assertion, and the resentencing court's conclusion, that PRS was already part of the original sentence. That record reveals that, in a colloquy with defendant regarding a plea withdrawal issue, the court made a casual remark that apparently referred to PRS. This fell far short of being the formal pronouncement of sentence required by statute (CPL 380.50[1]) and by People v Sparber (10 NY3d 454 [2010]). Instead, the formal pronouncement of sentence was limited to a prison term.

We have considered and rejected the People's procedural arguments. The action taken on September 25, 2008, regardless of how denominated by the court, was a judgment of resentence that added PRS to the existing sentence. Defendant has the right to appeal that judgment, and it brings up for review the court's determination — which we find erroneous — that it had already imposed PRS. In any event, were we not dismissing as academic the appeal from the June 24, [*2]2010 order which denied relief under CPL 440.20, we would reverse that order as well, for the reasons stated above.

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

ENTERED: MAY 5, 2011

CLERK