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

1047
KA 11-02010
PRESENT: SCUDDER, P.J., SMITH, FAHEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JEFFREY L. HABERER, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM
OF COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Cattaraugus County Court (Larry
M. Himelein, J.), rendered August 15, 2011. Defendant was resentenced
by imposing a period of postrelease supervision upon his conviction of
sodomy in the first degree.

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

     Memorandum: Defendant appeals from a resentence pursuant to
which County Court added a mandatory period of postrelease supervision
to the sentence previously imposed on his conviction, upon a jury
verdict, of sodomy in the first degree (Penal Law former § 130.50
[3]). Contrary to defendant’s contention, the court did not violate
his due process or statutory rights by its failure to reconsider the
term of incarceration that was previously imposed. At defendant’s
original sentencing, the court committed a Sparber error by failing to
impose a five-year period of postrelease supervision (see § 70.45 [1],
[2]; People v Lingle, 16 NY3d 621, 629; see generally People v
Sparber, 10 NY3d 457, 468-471). Resentencing following a Sparber
error “is limited to remedying [the] specific procedural error—i.e., .
. . mak[ing] the required pronouncement” of postrelease supervision
(Lingle, 16 NY3d at 635 [internal quotation marks omitted]). Thus,
“[t]he court . . . was bound to reimpose the original sentence, aside
from the addition of [the] required period of postrelease supervision”
(People v Savery, 90 AD3d 1505, 1506, lv denied 18 NY3d 928).

     Defendant’s further contention that the sentence is excessive is
not properly before us. “Where, as here, defendant appeals from a
resentence conducted to address an error in failing to impose a period
of postrelease supervision, this Court is without authority to reduce
the period of incarceration imposed” (People v Condes, 100 AD3d 1552,
1553, lv denied 20 NY3d 1060; see Lingle, 16 NY3d at 635). Finally,
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                                                         KA 11-02010

we have reviewed defendant’s remaining contentions, but conclude that
they do not require modification or reversal of the resentence.




Entered:   November 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
