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

920
KA 12-01043
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ADAM BENNEFIELD, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

ADAM BENNEFIELD, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered May 16, 2012. The resentence contained a
sentence previously imposed.

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

     Memorandum: Defendant was convicted upon his plea of guilty of,
inter alia, two counts of attempted kidnapping in the second degree
(Penal Law §§ 110.00, 135.20). In appeal No. 1, defendant appeals
from a resentence on those counts and, in appeal No. 2, he appeals
from a subsequent resentence. Consistent with the plea agreement,
Supreme Court initially sentenced defendant to concurrent determinate
terms of imprisonment of 15 years without imposing a period of
postrelease supervision (PRS). Defendant appealed from the judgment
of conviction but did not raise the failure of the court to impose PRS
in his brief, and we affirmed (People v Bennefield [appeal No. 1], 306
AD2d 911). The Department of Corrections and Community Supervision
(DOCCS) later administratively adjusted defendant’s sentence to
include a period of PRS, prompting defendant to file a motion pursuant
to CPL 440.10 seeking to vacate his plea as involuntary based on the
court’s failure to advise him of the PRS requirement. In response,
the People acknowledged that DOCCS lacked authority to impose PRS and
asked the court to resentence defendant to the original sentence
without PRS pursuant to Penal Law § 70.85. The court denied
defendant’s motion to vacate his plea and resentenced him as proposed
by the People. Defendant then moved pursuant to CPL 440.20 to set
aside the resentence on the ground that the court failed to ask
whether he wished to make a statement before the original sentence was
                                 -2-                           920
                                                         KA 12-01043

reimposed, as required by CPL 380.50 (1). The court granted that
motion and resentenced defendant once again to the original sentence
without a period of PRS.

     We note at the outset that appeal No. 1 must be dismissed because
the initial resentencing was superseded by the subsequent resentencing
in appeal No. 2 (see People v Motley [appeal No. 3], 56 AD3d 1158,
1158-1159). With respect to appeal No. 2, defendant contends in his
main and pro se supplemental briefs that the court should have vacated
his plea. According to defendant, his plea was involuntarily entered
because he was not informed prior to the plea that a period of PRS was
required for attempted kidnapping in the second degree. Defendant did
not, however, appeal from the order denying his motion to vacate his
plea, and the only issues that are properly before us on this appeal
are those relating to the legality of the resentence. Apparently
recognizing this procedural hurdle, defendant asks us to treat his
appeal as if it were from the order denying his CPL 440.10 motion, but
we perceive no basis upon which to do so.

     We further conclude that in appeal No. 2 the court properly
resentenced defendant pursuant to Penal Law § 70.85 to the original
sentence without imposing a period of PRS. The statute permits the
sentencing judge, with the consent of the People, to “re-impose the
originally imposed determinate sentences of imprisonment without any
term of post-release supervision.” The statute was enacted to “avoid
the need to vacate guilty pleas under [People v] Catu [(4 NY3d 242)]
when defendants are not properly advised of mandatory terms of
postrelease supervision” (People v Rucker, 67 AD3d 1126, 1127; see
People v Verhow, 83 AD3d 1528, 1528; People v Williams, 82 AD3d 1576,
1577, lv denied 17 NY3d 810). Here, the People requested that the
court resentence defendant pursuant to section 70.85, and the court
granted that request. The fact that defendant did not ask for
resentencing is of no moment (see generally Williams, 82 AD3d at
1577). Contrary to defendant’s contention, the resentence in appeal
No. 2 does not result in an injustice inasmuch as defendant has
received sentences for the two counts of attempted kidnapping in the
second degree that are entirely consistent with the terms of the plea
agreement, i.e., determinate concurrent sentences within the
permissible sentencing range with no PRS.

     Defendant also contends that his sentence is unduly harsh and
severe, and asks us to reduce his aggregate sentence of imprisonment
from 15 years to 13 years, which essentially amounts to time served.
As we noted in defendant’s appeal from the judgment of conviction
(Bennefield, 306 AD2d at 912), however, defendant’s challenge to the
severity of his sentence is encompassed by his valid waiver of the
right to appeal (see People v Lopez, 6 NY3d 248, 256; People v
Suttles, 107 AD3d 1467, 1468).

     We have reviewed the remaining contentions in defendant’s main
brief and pro se supplemental brief and conclude that none warrants
                                 -3-                           920
                                                         KA 12-01043

reversal or modification of the resentence in appeal No. 2.




Entered:   September 27, 2013                   Frances E. Cafarell
                                                Clerk of the Court
