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

6
KA 11-02119
PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EVERTON HIBBERT, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (AMANDA L. DREHER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered August 29, 2011. Defendant was
resentenced upon his conviction of murder in the second degree and
criminal possession of a weapon in the second degree.

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

     Memorandum: Defendant appeals from a resentence upon his
conviction, in 2000, of murder in the second degree (Penal Law §
125.25 [1]) and criminal possession of a weapon in the second degree
(§ 265.03 [former (2)]). It is undisputed that, at the time of his
plea of guilty to those crimes, Supreme Court (Mark, J.) failed to
advise defendant that he was subject to a period of postrelease
supervision (PRS) with respect to the count of criminal possession of
a weapon. Supreme Court (Valentino, J.) was alerted to the error
pursuant to Correction Law § 601-d and, with the consent of the
People, resentenced defendant pursuant to Penal Law § 70.85 to the
bargained-for determinate term of 15 years of imprisonment without PRS
to run concurrently with the indeterminate term of imprisonment
imposed on the murder count. Defendant failed to preserve for our
review his present contention that Penal Law § 70.85 is
unconstitutional (see CPL 470.05 [2]) and, in any event, his
contention is not properly before us because he failed to provide
notice to the Attorney General of his challenge to the
constitutionality of the statute (see CPLR 1012 [b]; Executive Law §
71 [3]; see generally People v Williams, 82 AD3d 1576, 1578, lv denied
17 NY3d 810). We nevertheless note that the Court of Appeals has
determined that “section 70.85 is a constitutionally permissible
legislative remedy for the defectiveness of the plea” (People v
                                 -2-                              6
                                                          KA 11-02119

Pignataro, ___ NY3d ___, ___ [Dec. 12, 2013]).




Entered:   February 7, 2014                      Frances E. Cafarell
                                                 Clerk of the Court
