People v. Momplaisir

2 A.D.3d 320, 768 N.Y.S.2d 605

Opinion

Judgment of resentence, Supreme Court, New York County (Budd Goodman, J.), rendered January 10, 2002, as amended March 28, 2002, convicting defendant of violation of probation, and revoking his prior sentence of probation and resentencing him to a term of 3 to 6 years, unanimously affirmed.

Defendant had been sentenced to five years probation in 1997 upon his plea of guilty of attempted robbery in the second degree. Upon his violation of probation, he was resentenced on January 10, 2002 to a term of 2 to 6 years. It is undisputed that this sentence was illegal because a minimum term of one half the maximum was required. Accordingly, on March 28, 2002, the court lawfully resentenced defendant to a term of 3 to 6 years (see People v DeValle, 94 NY2d 870 [2000]). We reject defendant’s argument that, given the prior sentence of 2 to 6 years, he was constitutionally entitled to a sentence no greater than 2 to 4 years (People v Whiffled, 276 AD2d 365 [2000], lv denied 96 NY2d 740 [2001]; Williams v Travis, 143 F3d 98 [1998]). We also perceive no basis for reducing the sentence as a matter of discretion. Concur—Nardelli, J.P., Saxe, Rosenberger, Williams and Friedman, JJ.