MEHMEL, PETER J., PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
882
KA 11-01496
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
PETER J. MEHMEL, DEFENDANT-APPELLANT.
WAGNER & HART, LLP, OLEAN (JANINE C. FODOR OF COUNSEL), FOR
DEFENDANT-APPELLANT.
LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM
OF COUNSEL), FOR RESPONDENT.
Appeal from a resentence of the Cattaraugus County Court (Larry
M. Himelein, J.), rendered May 31, 2011. Defendant was resentenced
upon his conviction of robbery in the second degree.
It is hereby ORDERED that the resentence so appealed from is
unanimously affirmed.
Memorandum: Defendant was convicted upon his plea of guilty of
robbery in the second degree (Penal Law § 160.10 [2] [b]), and he
appeals from a resentence imposing a period of postrelease supervision
in addition to the determinate term of incarceration originally
imposed. The record establishes that, although County Court had
advised defendant at the time of the plea that the sentence would
include a five-year period of postrelease supervision, the court
neglected to impose the period of postrelease supervision at the time
of sentencing. As defendant correctly concedes, there is no double
jeopardy violation with respect to the resentence because he is still
serving the sentence originally imposed (see People v Lingle, 16 NY3d
621, 630-631; cf. People v Williams, 14 NY3d 198, 217-220, cert denied
___ US ___, 131 S Ct 125). Defendant contends that the five-year
period of postrelease supervision was illegal because there was an
unreasonable delay between the date of the original sentence and that
of the resentence, in violation of CPL 380.30 (1) (see Williams, 14
NY3d at 213). We conclude, however, that in resentencing defendant
the court simply corrected the error it made at the time of the
original sentence and thus that the resentence was proper (see People
v Sparber, 10 NY3d 457, 469; see generally People v Howard, 96 AD3d
1691, 1692).
Entered: September 28, 2012 Frances E. Cafarell
Clerk of the Court