PEOPLE v. THOMAS (2009)

Judgment of resentence, Supreme Court, New York County (Carol Berkman, J.), rendered October 14, 2008, resentencing defendant, as a second felony offender, to concurrent terms of 3 years and 1 1/2 to 3 years, with 5 years' postrelease supervision, unanimously affirmed.

 The court properly resentenced defendant to comply with the requirement that a term of postrelease supervision be part of the court's oral pronouncement of sentence (see People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459 [2008] ).   The resentencing was not untimely under Correction Law § 601-d(4)(d), because defendant's attorney consented to adjournments of the proceedings so that defendant could be produced.   We reject defendant's argument that by providing that “[t]he designated person may, with counsel, knowingly consent to extend the time periods specified in paragraphs (c) and (d) of this subdivision,” Correction Law § 601-d(4)(e) requires a defendant's personal consent.   There is nothing in that language, or elsewhere, to suggest that the Legislature intended to add to the very narrow category of fundamental decisions to be made by a defendant personally (see People v. Ferguson, 67 N.Y.2d 383, 390, 502 N.Y.S.2d 972, 494 N.E.2d 77 [1986] ).   In particular, “[s]cheduling matters are plainly among those for which agreement by counsel generally controls” (New York v. Hill, 528 U.S. 110, 115, 120 S.Ct. 659, 145 L.Ed.2d 560 [2000] ).

 In any event, we also conclude that when a resentencing does not comply with the time limits set forth in Correction Law § 601-d(4)(c) or (d), this does not entitle a defendant to have PRS removed from the sentence.   These time limits do not affect a court's inherent power to correct its error in sentencing (see Correction Law § 601-d[8];  People v. Pelsey, 25 Misc.3d 1205(A), 2009 WL 3066662, *3, 2009 N.Y. Misc. LEXIS 2648, *3 [Sup. Ct., Queens County 2009];  see also People v. Sparber, 10 N.Y.3d at 471-472, 859 N.Y.S.2d 582, 889 N.E.2d 459).

Defendant failed to preserve his claims that the court lacked authority and jurisdiction to correct his sentence and that double jeopardy and due process protections rendered his resentencing unconstitutional, and we decline to review them in the interest of justice (see People v. Rodriguez, 60 A.D.3d 452, 874 N.Y.S.2d 117 [2009], lv. granted 12 N.Y.3d 928, 884 N.Y.S.2d 710, 912 N.E.2d 1091 [2009] ).   As an alternative holding, we find them without merit (see People v. Hernandez, 59 A.D.3d 180, 872 N.Y.S.2d 455 [2009], lv. granted 12 N.Y.3d 817, 881 N.Y.S.2d 24, 908 N.E.2d 932 [2009] ).