People v Williams, 2024 NY Slip Op 00568 [224 AD3d 1311]
February 2, 2024
Appellate Division, Fourth Department
[*1]
The People of the State of New York, Respondent,
v
Mark L. Williams, Appellant.
Julie Cianca, Public Defender, Rochester (Drew R. Dubrin of counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Martin P. McCarthy, II, of counsel), for respondent.
Appeal from a resentence of the Monroe County Court (Douglas A. Randall, J.), rendered October 22, 2019. Defendant was resentenced upon his conviction of robbery in the first degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted in 2002 upon a jury verdict of robbery in the first degree (Penal Law § 160.15 [4]) and criminal possession of a weapon in the third degree (§ 265.02 [former (4)]), and County Court failed to impose a period of postrelease supervision (PRS) with respect to those counts as required by Penal Law § 70.45 (1). Defendant contends that, because he had served more than 17 years of his original 25-year sentence of imprisonment, the sentencing court violated his constitutional rights against double jeopardy and to due process by resentencing him pursuant to Correction Law § 601-d and pronouncing the relevant period of PRS. Even assuming, arguendo, that defendant’s contentions do not require preservation ( cf. People v Woods , 122 AD3d 1400 , 1401 [4th Dept 2014], lv denied 25 NY3d 1210 [2015]; People v Smikle , 112 AD3d 1357 , 1358 [4th Dept 2013], lv denied 22 NY3d 1141 [2014]; see generally People v Williams , 14 NY3d 198 , 220-221 [2010], cert denied 562 US 947 [2010]), we nevertheless conclude that they lack merit.
Inasmuch as defendant had not yet completed his originally imposed sentence of imprisonment when he was resentenced, “ ’his resentencing to a term including the statutorily required period of postrelease supervision did not violate the double jeopardy or due process clauses of the United States Constitution’ ” ( People v Drake , 126 AD3d 1382 , 1383 [4th Dept 2015], lv denied 26 NY3d 1144 [2016]; see People v Lingle , 16 NY3d 621 , 630-633 [2011]; People v Fox , 104 AD3d 789 , 789-790 [2d Dept 2013], lv denied 21 NY3d 943 [2013]; cf. Williams , 14 NY3d at 217). Defendant’s reliance on cases rejected by the Court of Appeals in Lingle is misplaced ( see Lingle , 16 NY3d at 632). Present—Whalen, P.J., Lindley, Montour, Ogden and DelConte, JJ..