THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MARK WILLIAMS DEFENDANT APPELLANT (2024)

MEMORANDUM AND ORDER

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).

Entered: February 2, 2024

Ann Dillon Flynn

Clerk of the Court