SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1266
KA 11-00483
PRESENT: SCUDDER, P.J., SMITH, GREEN, GORSKI, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JASON SAVERY, DEFENDANT-APPELLANT.
CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.
Appeal from a resentence of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered February 15, 2011. Defendant was
resentenced upon his conviction of burglary in the second degree.
It is hereby ORDERED that the resentence so appealed from is
unanimously affirmed.
Memorandum: Defendant was convicted upon a jury verdict of,
inter alia, burglary in the second degree (Penal Law § 140.25 [2]),
and he appeals from the resentence on that conviction. County Court
(Corning, J.) sentenced defendant to various concurrent and
consecutive terms of imprisonment, but it failed to impose a period of
postrelease supervision with respect to count 15, convicting defendant
of burglary in the second degree, as required by Penal Law § 70.45
(1). Pursuant to Correction Law § 601-d, County Court (Fandrich,
A.J.) resentenced defendant to add the requisite period of postrelease
supervision.
Contrary to defendant’s contention, the resentence does not
violate the Double Jeopardy Clause of the U.S. Constitution (see
People v Lingle, 16 NY3d 621, 630-631; cf. People v Williams, 14 NY3d
198, 217, cert denied ___ US ___, 131 S Ct 125). Contrary to
defendant’s further contentions, the court did not lose jurisdiction
to resentence him pursuant to CPL 380.80 (see Williams, 14 NY3d at
213), and the failure to comply with the time limits set forth in
Correction Law § 601-d (4) (c) or (d) does not require reversal (see
People v Thomas, 68 AD3d 514, 515). “ ‘New York courts have the
inherent authority to correct illegal sentences’ . . ., regardless of
the time limits set forth in [that statute]” (People v Becker, 72 AD3d
1290, 1291, lv denied 15 NY3d 747).
At the resentencing hearing, the court added a five-year period
of postrelease supervision to count 15, but it stated that “[a]ll
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KA 11-00483
other terms and conditions of [defendant’s] sentenc[e] as imposed by
the initial sentencing [c]ourt [would] remain the same.” Defendant
contends that, because the court did not specifically direct that the
sentence on count 15 be served consecutively to the sentences imposed
on counts 1 through 12, the sentence on count 15 must run concurrently
with those sentences. We reject that contention. The original
sentence imposed on count 15 was to run consecutively to the sentences
imposed on counts 1 through 12. A court resentencing a defendant
pursuant to Correction Law § 601-d is not “supposed to do anything at
resentencing other than correct the discrete error prompting the
resentencing in the first place” (Lingle, 16 NY3d at 634). The court
therefore was bound to reimpose the original sentence, aside from the
addition of any required period of postrelease supervision. By
stating that all other terms and conditions of the original sentence
would remain the same, the court effectively ordered the sentence
imposed on count 15 to run consecutively to the sentences imposed on
counts 1 through 12, as directed in the original sentence.
Contrary to defendant’s remaining contention, the resentence is
not illegal, and it is not unduly harsh or severe. We note, however,
that the certificate of conviction fails to state that defendant was
sentenced as a second felony offender and incorrectly reflects the
nature of the consecutive sentencing. The sentences originally
imposed on counts 1 through 6 were to run concurrently to each other;
the sentences originally imposed on counts 7 through 12 were to run
concurrently to each other and consecutively to the sentences imposed
on counts 1 through 6; and the sentences originally imposed on counts
15 and 16 were to run concurrently to each other and consecutively to
the other sentences. The certificate of conviction, however, states
that the sentences imposed on only counts 1, 7 and 15 are to run
consecutively to each other. The certificate of conviction must
therefore be amended accordingly (see e.g. People v Carrasquillo, 85
AD3d 1618, 1620, lv denied 17 NY3d 814; People v Afrika, 79 AD3d 1678,
1680, lv denied 17 NY3d 791).
Entered: December 23, 2011 Frances E. Cafarell
Clerk of the Court