Submitted - October 23, 2017
Skip Laisure, New York, NY (Bryan D. Kreykes and Ronald
Zapata of counsel), for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M.
Castellano, Johnnette Traill, Joseph N. Ferdenzi, and
Anastasia Spanakos of counsel), for respondent.
C. DILLON, J.P. JOHN M. LEVENTHAL SYLVIA O. HINDS-RADIX
HECTOR D. LASALLE, JJ.
DECISION & ORDER
by the defendant from two resentences of the Supreme Court,
Queens County (IraH. Margulis, J.), imposed January 28, 2015,
and May 12, 2016, respectively, upon his conviction of rape
in the first degree (two counts).
that the resentences are affirmed.
Indictment No. 2103/03, the defendant was charged with sex
crimes occurring on March 7, 1998, and April 7, 2003. Count
one charged him with rape in the first degree occurring on
March 7, 1998, and count six charged him with rape in the
first degree occurring on April 7, 2003. On March 7, 1998,
the defendant was 15 years old, and the crime he committed on
that date was a juvenile offense.
January 12, 2005, the defendant pleaded guilty to counts one
and six of the indictment. On January 27, 2005, he received
the promised sentence of an indeterminate term of
imprisonment of 8 to 16 years on count one, and a determinate
term of imprisonment of 16 years on count six, plus 5 years
of postrelease supervision. The Supreme Court directed that
the terms of imprisonment run concurrently to each other. On
August 3, 2005, the Supreme Court amended the defendant's
sentence on the first count of the indictment and imposed an
indeterminate term of imprisonment as a juvenile offender of
3a to 10 years, without calling the defendant back to court
to resentence him.
defendant moved to set aside his judgment of conviction, as
amended, pursuant to CPL article 440. In one of those motions
he alleged that his sentence was improperly amended in
absentia. The Supreme Court granted him relief, when, on
January 28, 2015, the defendant was produced and resentenced
as a juvenile offender on the first count of the indictment
to an indeterminate term of imprisonment of 3a to 10 years.
The defendant objected to the resentence on the ground that
he had already served 11 years and 7 months, and had
therefore already served 3 a to 10 years. He further claimed
that the court lost jurisdiction over count one by
unreasonably delaying the imposition of a legal sentence.
12, 2016, the defendant was produced yet again, and was
resentenced as a first felony offender with respect to count
one and a second felony offender with respect to count six.
The defense counsel argued that count one of the indictment
should be dismissed because it took 10 years to impose a
legal sentence on that count, citing People v Drake
(61 N.Y.2d 359).
defendant appeals from both the resentence which occurred on
January 28, 2015, and the resentence which occurred on May
defendant contends that the Supreme Court lost jurisdiction
over his conviction because of the delay in correcting the
sentence imposed. This contention is without merit, and the
defendant's reliance upon People v Drake (61
N.Y.2d 359) is misplaced. In that case, there was a 39-month
delay between the date the defendant was convicted upon a
jury verdict, and the date of the original sentence. A delay
in the initial sentencing is presumptively prejudicial since
it deprives a defendant of a timely right of direct appeal
(see People v Hatzman, 218 A.D.2d 185, 188).
However, this case involves resentencing, where the defendant
bears the burden of establishing prejudice (see People v
Peterson, 264 A.D.2d 574; People vHatzman, 218
A.D.2d at 188). Here, the defendant's claim of prejudice
is unpreserved for appellate review and in any event without
merit (see generally People v Lynch, 121 A.D.3d
717). The delay in resentencing did not deprive the court of
jurisdiction (see People v Smith, 277 A.D.2d 178;
People v Bryan, 231 A.D.2d 957).
contentions raised in the defendant's supplemental pro se
brief are not properly before this Court (see People v
Sansone, 65 A.D.3d 636; People v ...