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

274
KA 11-02404
PRESENT: SCUDDER, P.J., LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WALLACE DRAKE, DEFENDANT-APPELLANT.


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

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Onondaga County Court (Joseph E.
Fahey, J.), rendered October 19, 2011. Defendant was resentenced by
imposing periods of postrelease supervision upon his convictions of
attempted murder in the second degree, assault in the first 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 was convicted in 2002 upon a jury verdict
of attempted murder in the second degree (Penal Law §§ 110.00, 125.25
[1]), assault in the first degree (§ 120.10 [1]) and criminal
possession of a weapon in the second degree (§ 265.03 [2]). At
sentencing, County Court failed to impose a period of postrelease
supervision (PRS) upon each count, as required by Penal Law § 70.45
(1). While defendant was serving his sentence, the court resentenced
him pursuant to Correction Law § 601-d, to add the requisite periods
of PRS. Defendant now contends that the resentencing violates his
constitutional double jeopardy and due process rights. Even assuming,
arguendo, that defendant’s contentions do not require preservation
(cf. People v Woods, 122 AD3d 1400, 1401; People v Smikle, 112 AD3d
1357, 1358, lv denied 22 NY3d 1141; see generally People v Williams,
14 NY3d 198, 220-221, cert denied ___ US ___, 131 S Ct 125), we
nevertheless conclude that they lack merit.

     Inasmuch as “defendant had not yet completed his originally
imposed sentence of imprisonment when he was resentenced, his
resentencing to a term including the statutorily required period of
postrelease supervision did not violate the double jeopardy or due
process clauses of the United States Constitution” (People v Fox, 104
AD3d 789, 789-790, lv denied 21 NY3d 943; see People v Lingle, 16 NY3d
621, 630-633; People v Ralph, 91 AD3d 796, 796-797, lv denied 20 NY3d
                                 -2-                          274
                                                        KA 11-02404

1064; cf. Williams, 14 NY3d at 217). Defendant’s reliance on cases
rejected by the Court of Appeals in Lingle is misplaced (see Lingle,
16 NY3d at 632).




Entered:   March 20, 2015                      Frances E. Cafarell
                                               Clerk of the Court
