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

125
KA 11-01056
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

HARRY N. FOMBY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN C.
RUSSO-MCLAUGHLIN OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR RESPONDENT.


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