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

562
KA 13-00462
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANDRE TERRY, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ROMANA A. LAVALAS
OF COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Onondaga County Court (Joseph E.
Fahey, J.), rendered November 22, 2011. Defendant was resentenced
upon his conviction of assault in the second degree (three counts),
reckless endangerment in the first degree (three counts) and criminal
possession of a weapon in the second degree (four counts).

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

     Memorandum: Defendant was convicted in 2003 upon a jury verdict
of, inter alia, three counts of assault in the second degree (Penal
Law § 120.05 [2]) and four counts of criminal possession of a weapon
in the second degree (§ 265.03 [2]), and County Court failed to impose
a period of postrelease supervision with respect to those counts as
required by Penal Law § 70.45 (1). Defendant contends that, because
he had served nearly eight years of his original 20-year sentence of
imprisonment, the sentencing court violated his constitutional rights
against double jeopardy and to due process by resentencing him
pursuant to Correction Law § 601-d and pronouncing the relevant term
of postrelease supervision (PRS). As defendant himself acknowledges,
however, the Court of Appeals has explicitly held that a resentencing
to correct a failure to pronounce a period of PRS is permissible (see
People v Sparber, 10 NY3d 457, 472), and that such resentencing does
not violate the prohibition against double jeopardy or the right to
due process when it occurs before completion of a defendant’s
originally-imposed sentence of imprisonment; moreover, the Court
explicitly rejected defendant’s instant contention that he had served
a significant portion of his sentence and thus had a reasonable
expectation of the finality of his sentence (see People v Lingle, 16
NY3d 621, 630-633). “Indeed, the court was bound to impose
‘statutorily-required sentences’ ” (People v Mike, 124 AD3d 1325,
                                 -2-                    562
                                                  KA 13-00462

1325, quoting Lingle, 16 NY3d at 633).




Entered:   June 12, 2015                 Frances E. Cafarell
                                         Clerk of the Court
