People v. Coble

17 A.D.3d 1165, 794 N.Y.S.2d 549, 2005 N.Y. App. Div. LEXIS 4679

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 2005
• Status: Published

Opinion

Appeal from a resentence of the Supreme Court, Erie County (Ronald H. Tills, A.J.), rendered June 14, 2002. Defendant was resentenced following his conviction, upon his plea of guilty, of attempted robbery in the second degree.

It is hereby ordered that the resentence so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant was convicted upon his plea of guilty of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [2] [b]) and was originally sentenced to a determinate term of incarceration and a period of postrelease supervision. Supreme Court, however, thereafter resentenced defendant by increasing the period of postrelease supervision from IV2 years to 5 years. Because the resentence occurred more than 30 days after the original sentence and the only notice of appeal is from the resentence, defendant’s appeal is from the resentence only (see CPL 450.30 [3]; People v Ferrin, 197 AD2d 882 [1993], lv denied 82 NY2d 849 [1993]). Therefore, the contentions of defendant with respect to the original judgment of conviction, i.e., that he was denied due process and effective assistance of counsel prior to the entry of his plea, are not properly raised on this appeal.

“Contrary to defendant’s contention, [the court] had inherent power to resentence defendant in order to correct an illegal sentence that it had previously imposed” (People v Leeper, 294 AD2d 885, 885 [2002]; see People v DeValle, 94 NY2d 870 [2000]; People v Alford, 272 AD2d 901 [2000], lv denied 96 NY2d 780 [2001]). Thus, contrary to the contentions of defendant, he was not denied due process and the court did not violate CPL 430.10. Pursuant to Penal Law § 70.45 (2), the court was required to impose a five-year period of postrelease supervision based on defendant’s status as a second violent felony offender (see People v Jeter, 15 AD3d 885 [2005]; People v Lockett, 303 AD2d 947 [2003], lv denied 1 NY3d 575 [2003]; People v Skye, 298 AD2d 889 [2002]). Defendant was afforded an opportunity to withdraw his plea before the court imposed the enhanced sentence and thus the imposition of that sentence does not warrant reversal (see People v Langworthy, 1 AD3d 1013 [2003], lv denied 2 NY3d 763 [2004]; People v Hogue, 295 AD2d 928 [2002], lv denied 99 NY2d 536 [2002]). The resentence, mandated by law, is not unduly harsh or severe. Present—Kehoe, J.P., Gorski, Smith, Pine and Hayes, JJ.