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

109
KA 11-00942
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALFONZO QUINNEY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Erie County Court (Michael F.
Pietruszka, J.), rendered November 17, 2010. The resentence imposed a
period of postrelease supervision.

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

     Memorandum: Defendant appeals from a resentence pursuant to
which County Court added a mandatory period of postrelease supervision
(PRS) to the sentence previously imposed on his conviction, following
a jury trial, of attempted assault in the first degree (Penal Law §§
110.00, 120.10 [1]). Contrary to the contention of defendant, the
court did not violate his due process rights during resentencing when
it did not reevaluate the term of incarceration previously imposed.
We note that, when defendant was originally sentenced, the court was
required to impose a five-year period of PRS (see § 70.45 [1], [2])
and, by failing to do so, committed a Sparber error (see People v
Lingle, 16 NY3d 621, 629; see generally People v Sparber, 10 NY3d 457,
468-471). Resentencing following a Sparber error “is limited to
remedying [the] specific procedural error–i.e., . . . mak[ing] the
required pronouncement” of PRS (Lingle, 16 NY3d at 635 [internal
quotation marks omitted]). Thus, “[t]he court . . . was bound to
reimpose the original sentence, aside from the addition of any
required period of postrelease supervision” (People v Savery, 90 AD3d
1505, 1506, lv denied 18 NY3d 928).

     Defendant’s further challenge to the severity of the sentence is
not properly before us. “Where, as here, defendant appeals from a
resentence conducted to address an error in failing to impose a period
of [PRS], this Court is without authority to reduce the period of
incarceration imposed” (People v Condes, 100 AD3d 1552, 1553; see
Lingle, 16 NY3d at 635).
                                 -2-                           109
                                                         KA 11-00942

     Finally, we have reviewed defendant’s remaining contentions and
conclude that none requires modification or reversal of the
resentence.




Entered:   March 15, 2013                       Frances E. Cafarell
                                                Clerk of the Court
