         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
33
KA 09-01489
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GABRIEL M. WILLIAMS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a rensentence of the Erie County Court (Sheila A.
DiTullio, J.), rendered June 18, 2009. The judgment resentenced
defendant pursuant to Penal Law § 70.85.

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

     Memorandum: Defendant was convicted upon his plea of guilty of
assault in the first degree (Penal Law § 120.10 [1]) and robbery in
the first degree (§ 160.15 [1]) based upon his admission that he
repeatedly shot his neighbor in the head and stole property from him.
In accordance with the plea agreement, County Court sentenced
defendant to a determinate term of imprisonment of 20 years. That
sentence was illegal, however, inasmuch as it did not include a period
of postrelease supervision (PRS). The Department of Correctional
Services (DOCS) subsequently administratively imposed a five-year
period of PRS, which defendant successfully challenged in a CPLR
article 78 proceeding. In granting defendant’s petition, Supreme
Court vacated the PRS component of the sentence imposed by DOCS.
Defendant thereafter wrote a letter to County Court requesting “a
resentencing hearing.” The court granted defendant’s request and
appointed defense counsel to represent him. When defendant appeared
in court with defense counsel for resentencing, defendant requested
that the court vacate his guilty plea. The court denied that request
and instead resentenced defendant to the original sentence of a
determinate term of imprisonment of 20 years with no postrelease
supervision.

     We reject the contention of defendant that the court erred in
refusing to vacate his guilty plea and in resentencing him to the
sentence originally imposed. Because the original sentence was
imposed between September 1, 1998 and June 30, 2008, the court was
                                 -2-                            33
                                                         KA 09-01489

authorized to resentence defendant pursuant to Penal Law § 70.85. The
statute provides that, with the consent of the District Attorney, a
court that imposed a determinate term of imprisonment without the
mandatory period of PRS may, upon resentencing, “re[]impose the
originally imposed determinate sentence of imprisonment without any
term of [PRS], which then shall be deemed a lawful sentence.” As the
Court of Appeals recognized in People v Boyd (12 NY3d 390, 393-394),
the purpose underlying section 70.85, as noted in the Governor’s
Approval Memorandum concerning that statute, was to “ ‘avoid the need
for pleas to be vacated when the District Attorney consents to
re[]sentencing without a term of PRS.’ ” We thus conclude that,
inasmuch as the court properly resentenced defendant pursuant to
section 70.85, defendant was not entitled to vacatur of his plea.

     Defendant further contends that reversal is required because the
court erred in failing to notify the Attorney General of defendant’s
challenge to the constitutionality of Penal Law § 70.85. We conclude
that the People incorrectly concede that the court erred in failing to
do so. The record establishes that defendant did not in fact
challenge the constitutionality of section 70.85 or any other statute.
Although defendant argued at the resentencing proceeding that his plea
was unconstitutionally obtained because the court failed to advise him
of the requirement of PRS, that argument is fundamentally different
from an argument that section 70.85 is unconstitutional. In fact,
neither defendant nor defense counsel mentioned section 70.85 during
the resentencing proceeding. In any event, defendant’s contention
lacks merit because it was defendant’s obligation to notify the
Attorney General of any such constitutional challenge (see Koziol v
Koziol, 60 AD3d 1433, 1434-1435, appeal dismissed 13 NY3d 763; see
also People v Whitehead, 46 AD3d 715, lv denied 10 NY3d 772), and he
failed to do so.

     Finally, we conclude that defendant was not deprived of effective
assistance of counsel at the resentencing proceeding (see generally
People v Baldi, 54 NY2d 137, 147), and that the court did not abuse
its discretion in denying defense counsel’s request for an adjournment
of that proceeding (see People v Ippolito, 242 AD2d 880, lv denied 91
NY2d 874).




Entered:   March 25, 2011                       Patricia L. Morgan
                                                Clerk of the Court
