People v. Covington

88 A.D.3d 486, 930 N.Y.2d 190

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 11, 2011
• Status: Published

Opinion

We assume, without deciding, that this appeal is properly before us as an appeal from a judgment of resentence (see CPL 450.30 [3]; People v King, 84 AD3d 473 [2011]), and we find it unnecessary to decide the appealability issues raised by the People. However, defendant is not entitled to any relief.

Defendant’s original sentence on his underlying conviction unlawfully omitted the required period of postrelease supervision. Following postconviction motion practice and the Court of Appeals’ decision in People v Sparber (10 NY3d 457 [2008]),' the sentencing court determined that it would let the original sentence stand, without adding PRS. However, the court did not employ the procedure set forth in Penal Law § 70.85, whereby, with the People’s consent, the court may correct a Sparber error by reimposing the original sentence without PRS.

Defendant seeks a remand for a resentencing hearing, arguing that the resentencing, or purported resentencing, was procedurally defective in various respects. However, defendant was not adversely affected by any error, because the result, i.e., freedom from having to serve a term of PRS, was in his favor (see CPL 470.15 [1]; People v Acevedo, 17 NY3d 297, 302-303 [2011]).

In any event, defendant would not derive any practical benefit from a remand. To the extent that defendant seeks a proceeding at which he may ask the resentencing court for a lower prison sentence, that avenue of relief is foreclosed by the Court of Appeals’ decision in People v Lingle (16 NY3d 621, 634-635 [2011]). This Court likewise has no authority to revisit defendant’s prison sentence on this appeal (id. at 635). Concur — Mazzarelli, J.E, Friedman, Catterson, Moskowitz and Abdus-Salaam, JJ.