PEOPLE v. PRIMM

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Xavier PRIMM, Defendant-Appellant.  (Appeal No. 2.)

Decided: December 31, 2008

PRESENT:  SCUDDER, P.J., SMITH, CENTRA, AND FAHEY, JJ. Thomas Theophilos, Buffalo, for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.

In appeal No. 1, defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25[2] ).   Defendant was sentenced to a determinate term of imprisonment of three years and a three-year period of postrelease supervision.   In appeal No. 2, defendant appeals from a resentence pursuant to which he was resentenced to a determinate term of imprisonment of three years and a five-year period of postrelease supervision.   Initially, we note that, because the sentence in appeal No. 1 was superseded by the resentence in appeal No. 2, the appeal from the judgment in appeal No. 1 insofar as it imposed sentence must be dismissed (see People v. Haywood, 203 A.D.2d 966, 612 N.Y.S.2d 1016, lv. denied 83 N.Y.2d 967, 616 N.Y.S.2d 20, 639 N.E.2d 760;  see also People v. Marinaro, 45 A.D.3d 867, 846 N.Y.S.2d 344, lv. denied 11 N.Y.3d 790, 866 N.Y.S.2d 617, 896 N.E.2d 103).   Indeed, the sole contention of defendant on appeal concerns the resentence in appeal No. 2. Defendant contends that Supreme Court erred in resentencing him, and that the original three-year period of postrelease supervision should be reinstated.   Although the court erred in resentencing defendant without first affording him the opportunity to withdraw his plea, the proper remedy for that error would be vacatur of the plea, and defendant has expressly rejected that remedy on appeal (see People v. Dean, 52 A.D.3d 1308, 861 N.Y.S.2d 545, lv. denied 11 N.Y.3d 736, 864 N.Y.S.2d 394, 894 N.E.2d 658;  see also Marinaro, 45 A.D.3d at 868, 846 N.Y.S.2d 344).   Because the illegal sentence of a three-year period of postrelease supervision cannot be reinstated (see generally People v. Barber, 31 A.D.3d 1145, 818 N.Y.S.2d 391), we therefore affirm the resentence in appeal No. 2.

It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.

MEMORANDUM: