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

12
KA 08-02060
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

CHRISTOPHER NEWTON, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Monroe County Court (Patricia D.
Marks, J.), rendered September 24, 2008. Defendant was resentenced by
imposing concurrent terms of postrelease supervision.

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

     Memorandum: Defendant appeals from a resentence upon his motion
pursuant to CPL 440.20, in which he alleged that his sentence was
illegal inasmuch as Supreme Court (Mark, J.) had failed to impose a
term of postrelease supervision when it sentenced him as a second
felony offender on his conviction of, inter alia, three counts of
robbery in the first degree (Penal Law § 160.15 [2] - [4]). Although
not raised in his motion, County Court (Marks, J.) entertained
defendant’s contention at oral argument of the motion that Supreme
Court had erred in sentencing him as a second felony offender.
Defendant contended in County Court and contends on appeal that,
although he had been sentenced to a period of probation in 1998 based
on his conviction of a felony drug offense, his probation was revoked
after he committed the robberies. Defendant thus contends that,
because he was “resentenced” on the drug offense, Supreme Court
violated Penal Law § 70.06 (1) (b) (ii) inasmuch as the sentence on
the prior felony drug offense was not imposed before the commission of
the present felony robberies. We reject that contention. Rather, we
conclude that the revocation of probation on the prior drug offense
may not be “employed . . . to leapfrog [the] sentence forward so as to
vitiate its utility as a sentencing predicate” (People v Acevedo, 17
NY3d 297, 302).


Entered:    January 31, 2012                       Frances E. Cafarell
                                                   Clerk of the Court
