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The People of the State of New York v. Harry N. Fomby

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


February 1, 2013

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
HARRY N. FOMBY,
DEFENDANT-APPELLANT.

Appeal from a resentence of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered March 28, 2011.

People v Fomby

Appellate Division, Fourth Department

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.

Released on February 1, 2013

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.

Defendant was resentenced upon his conviction of robbery in the second degree (two counts).

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

Memorandum: Defendant was convicted following a jury trial of two counts of robbery in the second degree (Penal Law § 160.10 [1], [2] [b]), and he appeals from a resentence with respect to those convictions. Supreme Court (Tills, A.J.) originally sentenced defendant to concurrent determinate 15-year terms of imprisonment, but failed to impose periods of postrelease supervision (PRS) as required by Penal Law § 70.45 (1). To remedy that error (see Correction Law § 601-d), Supreme Court (Wolfgang, J.) later resentenced defendant to the same terms of imprisonment with corresponding periods of PRS prior to the completion of the originally-imposed sentence. Contrary to defendant's contention, the resentence did not violate his due process rights (see People v Lingle, 16 NY3d 621, 630-631). Furthermore, we conclude that "in resentencing defendant the court simply corrected the error . . . made at the time of the original sentence and thus that the resentence was proper" (People v Mehmel, 98 AD3d 1256, 1256; see People v Sparber, 10 NY3d 457, 472; see generally People v Howard, 96 AD3d 1691, 1692, lv denied 19 NY3d 1103). The imposition of the terms of PRS does not render the sentence unduly harsh or severe. Entered: February 1, 2013 Frances E. Cafarell Clerk of the Court

20130201

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