HOWARD, STANLEY L., PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
826
KA 11-01823
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
STANLEY L. HOWARD, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)
WILLIAMS, HEINL, MOODY & BUSCHMAN, P.C., AUBURN (RYAN JAMES MULDOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.
Appeal from a resentence of the Cayuga County Court (Thomas G.
Leone, J.), rendered June 30, 2011. Defendant was resentenced upon
his conviction of robbery in the first degree (three counts), criminal
possession of a weapon in the second degree and criminal possession of
stolen property in the fifth degree.
It is hereby ORDERED that the resentence so appealed from is
unanimously affirmed.
Memorandum: Defendant was convicted following a jury trial of
three counts of robbery in the first degree (Penal Law § 160.15 [2] -
[4]), and one count each of criminal possession of a weapon in the
second degree (§ 265.03 [former (2)]), and criminal possession of
stolen property in the fifth degree (§ 165.40), and he appeals from a
resentence with respect to those convictions. County Court (Corning,
J.) originally sentenced defendant as a second felony offender to
determinate concurrent terms of imprisonment, the longest of which was
15 years, but failed to impose periods of postrelease supervision
(PRS) for the determinate terms as required by Penal Law § 70.45 (1).
To remedy that error (see Correction Law § 601-d), County Court
(Leone, J.) later resentenced defendant to the same terms of
imprisonment with corresponding periods of PRS.
Because defendant was still serving his original sentence at the
time he was resentenced, we reject his contention that the resentence
violated his rights under the Double Jeopardy Clause of the Fifth
Amendment (see People v Lingle, 16 NY3d 621, 630-631; People v Nunes,
89 AD3d 1559, 1560, lv denied 18 NY3d 885; cf. People v Williams, 14
NY3d 198, 217-220, cert denied ___ US ___, 131 S Ct 125; People v
Kelly, ___ AD3d ___ [June 29, 2012]). We likewise reject defendant’s
contention that there was a violation of CPL 380.30 based on the delay
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KA 11-01823
between his original sentencing and his resentencing that deprived
County Court (Leone, J.) of its jurisdiction to resentence him.
Where, as here, the “defendant[] w[as] resentenced within a reasonable
time after [the Department of Correctional Services] notified the
court[] that” he qualified as a “ ‘designated person[]’ under
Correction Law § 601-d,” there is no violation of CPL 380.30
(Williams, 14 NY3d at 213).
Although defendant’s further contention that the court failed to
resentence him within the time limits set forth in Correction Law §
601-d (4) (a) and (c) is factually correct, it is well settled that
such failures do not provide a basis for reversal (see People v
Savery, 90 AD3d 1505, 1505, lv denied 18 NY3d 928; People v Becker, 72
AD3d 1290, 1291, lv denied 15 NY3d 747; People v Thomas, 68 AD3d 514,
515). Finally, we reject defendant’s contention that the resentence
imposed, with the addition of terms of PRS, constituted cruel and
unusual punishment. The court was statutorily mandated to impose
five-year terms of PRS as to defendant’s convictions of robbery and
criminal possession of a weapon (see Penal Law § 70.06 [former (6)]; §
70.45 [former (1)], [former (2)]), and it cannot be said that those
terms were “ ‘grossly disproportionate to the crime[s]’ ” (People v
Holmquist, 5 AD3d 1041, 1042, lv denied 2 NY3d 800; see People v
Wright, 85 AD3d 1642, 1644, lv denied 17 NY3d 863). We have
considered defendant’s remaining contentions and conclude that they
are without merit.
Entered: June 29, 2012 Frances E. Cafarell
Clerk of the Court