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

1289
KA 12-00436
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JASON SMIKLE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Erie County Court (Michael F.
Pietruszka, J.), rendered January 19, 2012. Defendant was resentenced
by imposing periods of postrelease supervision upon his conviction of
attempted murder in the second degree.

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

     Memorandum: Defendant was convicted following a jury trial of
murder in the second degree (Penal Law § 125.25 [1]), four counts of
attempted murder in the second degree (§§ 110.00, 125.25 [1]), and
five counts of criminal possession of a weapon in the fourth degree (§
265.01 [2]), and he appeals from a resentence with respect to that
conviction. County Court originally sentenced defendant to, inter
alia, consecutive and concurrent determinate terms of imprisonment of
eight years for the attempted murder counts, and we affirmed the
judgment of conviction (People v Smikle, 1 AD3d 883, lv denied 1 NY3d
634). The sentencing court had failed, however, to impose periods of
postrelease supervision with respect to the attempted murder counts as
required by Penal Law § 70.45 (1). To remedy that error (see
Correction Law § 601-d), the court resentenced defendant prior to the
completion of his sentence to the same terms of imprisonment and
imposed the requisite periods of postrelease supervision.

     We reject defendant’s contentions that the imposition of
postrelease supervision was irrational and that by our prior decision
we implicitly affirmed the legality of his sentence, thus precluding
the court from imposing periods of postrelease supervision at
resentencing. To the contrary, as noted above, postrelease
supervision is mandated by statute (see Penal Law § 70.45 [1]; see
generally People v Davis, 37 AD3d 1179, 1180), and we conclude that
“ ‘in resentencing defendant the court simply corrected the error . .
                                 -2-                          1289
                                                         KA 12-00436

. made at the time of the original sentence and thus that the
resentence was proper’ ” (People v Fomby, 103 AD3d 1100, 1100, lv
denied 21 NY3d 1073; see People v Sparber, 10 NY3d 457, 472; see
generally People v Howard, 96 AD3d 1691, 1692, lv denied 19 NY3d
1103).

     Defendant failed to preserve for our review his contention that
the 10½-year gap between his original sentence and his resentence
violated his statutory right to have his sentence pronounced “without
unreasonable delay” (CPL 380.30 [1]; see People v Diggs, 98 AD3d 1255,
1256, lv denied 20 NY3d 986), and his constitutional due process
rights (see People v Thomas, 68 AD3d 514, 515), and we decline to
exercise our power to review that contention as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]). Finally, the
periods of postrelease supervision do not render the sentence unduly
harsh or severe.




Entered:   December 27, 2013                   Frances E. Cafarell
                                               Clerk of the Court
