People v Terry

People v Terry 2015 NY Slip Op 04971 Decided on June 12, 2015 Appellate Division, Fourth 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 June 12, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.
562 KA 13-00462

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

ANDRE TERRY, DEFENDANT-APPELLANT.

Appeal from a resentence of the Onondaga County Court (Joseph E. Fahey, J.), rendered November 22, 2011. Defendant was resentenced upon his conviction of assault in the second degree (three counts), reckless endangerment in the first degree (three counts) and criminal possession of a weapon in the second degree (four counts).

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ROMANA A. LAVALAS OF COUNSEL), FOR RESPONDENT.

It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.

Memorandum: Defendant was convicted in 2003 upon a jury verdict of, inter alia, three counts of assault in the second degree (Penal Law § 120.05 [2]) and four counts of criminal possession of a weapon in the second degree (§ 265.03 [2]), and County Court failed to impose a period of postrelease supervision with respect to those counts as required by Penal Law § 70.45 (1). Defendant contends that, because he had served nearly eight years of his original 20-year sentence of imprisonment, the sentencing court violated his constitutional rights against double jeopardy and to due process by resentencing him pursuant to Correction Law § 601-d and pronouncing the relevant term of postrelease supervision (PRS). As defendant himself acknowledges, however, the Court of Appeals has explicitly held that a resentencing to correct a failure to pronounce a period of PRS is permissible (see People v Sparber, 10 NY3d 457, 472), and that such resentencing does not violate the prohibition against double jeopardy or the right to due process when it occurs before completion of a defendant's originally-imposed sentence of imprisonment; moreover, the Court explicitly rejected defendant's instant contention that he had served a significant portion of his sentence and thus had a reasonable expectation of the finality of his sentence (see People v Lingle, 16 NY3d 621, 630-633). "Indeed, the court was bound to impose statutorily-required sentences' " (People v Mike, 124 AD3d 1325,

1325, quoting Lingle, 16 NY3d at 633).

Entered: June 12, 2015

Frances E. Cafarell

Clerk of the Court