PEOPLE v. COBLE

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. James COBLE, Defendant-Appellant.

Decided: April 29, 2005

PRESENT:  KEHOE, J.P., GORSKI, SMITH, PINE, AND HAYES, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Paul J. Williams, III, of Counsel), for Plaintiff-Respondent.

 Defendant was convicted upon his plea of guilty of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10[2][b] ) and was originally sentenced to a determinate term of incarceration and a period of postrelease supervision.   Supreme Court, however, thereafter resentenced defendant by increasing the period of postrelease supervision from 1 1/212 years to 5 years.   Because the resentence occurred more than 30 days after the original sentence and the only notice of appeal is from the resentence, defendant's appeal is from the resentence only (see CPL 450.30[3];  People v. Ferrin, 197 A.D.2d 882, 602 N.Y.S.2d 288, lv. denied 82 N.Y.2d 849, 606 N.Y.S.2d 601, 627 N.E.2d 523).   Therefore, the contentions of defendant with respect to the original judgment of conviction, i.e., that he was denied due process and effective assistance of counsel prior to the entry of his plea, are not properly raised on this appeal.

 “Contrary to defendant's contention, [the court] had inherent power to resentence defendant in order to correct an illegal sentence that it had previously imposed” (People v. Leeper, 294 A.D.2d 885, 885, 741 N.Y.S.2d 487;  see People v. DeValle, 94 N.Y.2d 870, 704 N.Y.S.2d 924, 726 N.E.2d 476;  People v. Alford, 272 A.D.2d 901, 707 N.Y.S.2d 919, lv. denied 96 N.Y.2d 780, 725 N.Y.S.2d 644, 749 N.E.2d 213).   Thus, contrary to the contentions of defendant, he was not denied due process and the court did not violate CPL 430.10.   Pursuant to Penal Law § 70.45(2), the court was required to impose a five-year period of postrelease supervision based on defendant's status as a second violent felony offender (see People v. Jeter, 15 A.D.3d 885, 788 N.Y.S.2d 795;  People v. Lockett, 303 A.D.2d 947, 755 N.Y.S.2d 685, lv. denied 1 N.Y.3d 575, 775 N.Y.S.2d 791, 807 N.E.2d 904;  People v. Skye, 298 A.D.2d 889, 747 N.Y.S.2d 837).   Defendant was afforded an opportunity to withdraw his plea before the court imposed the enhanced sentence and thus the imposition of that sentence does not warrant reversal (see People v. Langworthy, 1 A.D.3d 1013, 767 N.Y.S.2d 358, lv. denied 2 N.Y.3d 763, 778 N.Y.S.2d 781, 811 N.E.2d 43;  People v. Hogue, 295 A.D.2d 928, 744 N.Y.S.2d 741, lv. denied 99 N.Y.2d 536, 752 N.Y.S.2d 597, 782 N.E.2d 575).   The resentence, mandated by law, is not unduly harsh or severe.

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

MEMORANDUM: