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

1292
KA 11-02329
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARRELL GUNN, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Onondaga County Court (Joseph E.
Fahey, J.), rendered October 18, 2011. Defendant was resentenced upon
his conviction of attempted murder in the first degree.

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

     Memorandum: Defendant was convicted upon his plea of guilty of
murder in the first degree (Penal Law § 125.27 [1] [a] [vii]; [b]) and
attempted murder in the first degree (§§ 110.00, 125.27 [1] [a] [vii];
[b]), and he now appeals from a resentence with respect to that
conviction. County Court originally sentenced defendant to a
determinate term of imprisonment for the count of attempted murder,
and we affirmed the judgment of conviction (People v Gunn, 35 AD3d
1243, lv denied 8 NY3d 923, reconsideration denied 8 NY3d 985). The
court had failed, however, to impose a period of postrelease
supervision with respect to that count, as required by Penal Law
§ 70.45 (1). To remedy that error (see Correction Law § 601-d; People
v Sparber, 10 NY3d 457, 465), with the People’s consent, the court
resentenced defendant prior to the completion of his sentence to the
same term of imprisonment without imposing a period of postrelease
supervision (see Penal Law § 70.85).

     Defendant failed to preserve for our review his contention that
he was denied due process because the resentence violated his
statutory right to have his sentence pronounced “without unreasonable
delay” (CPL 380.30 [1]), and because he was not given notice pursuant
to Correction Law § 601-d (2) that he was a “designated person” (see
People v Woods, 122 AD3d 1400, 1401, lv denied 25 NY3d 1210; People v
Diggs, 98 AD3d 1255, 1256, lv denied 20 NY3d 986). We decline to
exercise our power to review that contention as a matter of discretion
in the interest of justice (see CPL 470.15 [3] [c]). Contrary to
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                                                         KA 11-02329

defendant’s further contention, he was not denied effective assistance
of counsel at the resentencing proceeding (see Woods, 122 AD3d at
1401-1402; People v Williams, 82 AD3d 1576, 1578, lv denied 17 NY3d
810; see generally People v Baldi, 54 NY2d 137, 147).




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
