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People v. Rodriguez

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 10, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
EDWIN RODRIGUEZ, DEFENDANT-APPELLANT.

Judgment of resentence, Supreme Court, New York County (Carol Berkman, J.), rendered July 16, 2008, resentencing defendant to a term of 7 years with 5 years' postrelease supervision, unanimously affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Friedman, Gonzalez, Sweeny, McGuire, JJ.

1207/01

The court properly resentenced defendant pursuant to Correction Law § 601-d to comply with the requirement that PRS be part of the court's oral pronouncement of sentence (see People v Sparber, 10 NY3d 457 [2008]). We reject defendant's arguments that the court lacked authority and jurisdiction to correct his sentence once he completed the prison portion thereof (see People v Hernandez, __ AD3d , 2009 NY Slip Op 631 [February 5, 2009]. Defendant's double jeopardy argument, which is of a type that requires preservation (see People v Gonzalez, 99 NY2d 76, 82-83 [2002]), and his remaining challenges to the resentencing are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find them without merit (see Hernandez, AD3d , supra). With regard to defendant's argument that the resentencing court had discretion to let stand the original sentence, which unlawfully lacked a provision for PRS, we conclude that Correction Law § 601-d and Penal Law § 70.85, when read together, make clear that a court imposing a resentence pursuant to these enactments has no discretion to omit PRS without the prosecutor's consent, which was lacking here.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090310

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