September 11, 2013
The People of the State of New York, respondent,
Gary L. Dozier, appellant. Ind. No. 10-00738
Mark Diamond, New York, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu and Richard Longworth Hecht of counsel), for respondent.
RANDALL T. ENG, P.J. RUTH C. BALKIN JOHN M. LEVENTHAL ROBERT J. MILLER, JJ.
DECISION & ORDER
Appeal by the defendant from a resentence of the County Court, Westchester County (Hubert, J.), imposed April 5, 2012, upon his conviction of attempted burglary in the second degree under Westchester County Indictment No. 10-0738, upon his plea of guilty, the resentence being a period of postrelease supervision of five years, instead of a period of postrelease supervision of three years, in addition to the determinate term of imprisonment previously imposed on April 21, 2011.
ORDERED that the resentence is affirmed.
On February 22, 2011, the defendant pleaded guilty to attempted burglary in the second degree, a class D violent felony, in full satisfaction of charges pending against him under Westchester County Indictment No. 10-0738. In exchange for his plea, the County Court promised the defendant that he would be sentenced to a determinate term of 3½ years of imprisonment, and a 5-year period of postrelease supervision. On April 21, 2011, the County Court sentenced the defendant to the promised determinate term of imprisonment, but imposed a 3-year period of postrelease supervision instead of a 5-year period of postrelease supervision. The People thereafter moved for resentencing, contending that the imposition of a 5-year period of postrelease supervision was mandatory because the defendant had been adjudicated a second felony offender. The County Court granted the People's motion and, on April 5, 2012, resentenced the defendant so as to impose a 5-year period of postrelease supervision.
The defendant contends that, at resentencing, the County Court should have considered whether a reduction in the incarceratory component of his sentence was warranted in view of the increase in the period of postrelease supervision imposed. However, the defendant was resentenced solely because, as a second felony offender convicted of a violent felony offense, he was subject to a mandatory 5-year period of postrelease supervision, and the 3-year period of postrelease supervision originally imposed by the County Court was illegal (see Penal Law § 70.45; People v Wright, 85 A.D.3d 1316; People v Rivera, 51 A.D.3d 1267, 1270; People v Jordan, 21 A.D.3d 907, 908). Moreover, the sentence imposed at the resentencing proceeding was the same sentence originally promised to the defendant by the County Court in exchange for his plea of guilty. Under these circumstances, the County Court properly resentenced the defendant to correct the illegality in the term of postrelease supervision originally imposed, and to conform to the plea agreement.
The defendant further contends that the County Court erred in denying his post judgment motion for a "violent felony override" to make him eligible for various programs offered by the New York State Department of Corrections and Community Supervision (see 7 NYCRR 1900.4[c][iii]; People v Williams, 84 A.D.3d 1417). However, the propriety of the denial of the defendant's postjudgment motion is not properly before this Court on the present appeal from his resentence (see CPL 450.30, ; see also People v Berliner, 168 A.D.2d 739).
ENG, P.J., BALKIN, LEVENTHAL and MILLER, JJ., concur.