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People v. Thomas

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 10, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
EDWARD THOMAS, DEFENDANT-APPELLANT.

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 11/2 to 3 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.

Mazzarelli, J.P., Andrias, Saxe, Catterson, Acosta, JJ.

1734/03

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 NY3d 457 [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 NY2d 383, 390 [1986]). In particular, "[s]cheduling matters are plainly among those for which agreement by counsel generally controls" (New York v Hill, 528 US 110, 115 [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, 2009 WL 3066662, *3, 2009 NY Misc LEXIS 2648, *3 [Sup Ct, Queens County 2009]; see also People v Sparber, 10 NY3d at 471-472).

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 AD3d 452 [2009], lv granted 12 NY3d 928 [2009]). As an alternative holding, we find them without merit (see People v Hernandez, 59 AD3d 180 [2009], lv granted 12 NY3d 817 [2009]).

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

20091210

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