MIKE, CHARLES, PEOPLE v ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1272
KA 11-02028
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, LINDLEY, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
CHARLES MIKE, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.
Appeal from a resentence of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered July 12, 2011. Defendant was
resentenced upon his conviction of assault in the second degree and
criminal possession of a weapon in the second degree.
It is hereby ORDERED that the resentence so appealed from is
unanimously affirmed.
Memorandum: Defendant was convicted in 1999 upon a jury verdict
of, inter alia, assault in the second degree (Penal Law § 120.05) and
criminal possession of a weapon in the second degree (§ 265.03), and
Supreme Court failed to impose a period of postrelease supervision
with respect to those counts as required by Penal Law § 70.45 (1).
Pursuant to Correction Law § 601-d, the same court resentenced
defendant to add the requisite period of PRS while he was serving his
sentence. Contrary to defendant’s contention, the resentence does not
violate the Double Jeopardy Clause of the US Constitution or his due
process rights (see People v Lingle, 16 NY3d 621, 630-633). The Court
of Appeals in Lingle explicitly rejected defendant’s present
contention that he had served a significant portion of his sentence
and thus had a reasonable expectation of the finality of his sentence
(see id. at 630-631; People v Faeth, 107 AD3d 1426, 1428, lv denied 21
NY3d 1073). The Court also explicitly rejected defendant’s instant
contention that the resentence to correct a Sparber error violates his
due process rights (see Lingle, 16 NY3d at 632-633). Indeed, the
court was bound to impose “statutorily-required sentences” (id. at
633; see People v Quinney, 104 AD3d 1161, 1162, lv denied 21 NY3d
1008).
Entered: January 2, 2015 Frances E. Cafarell
Clerk of the Court