People v. Thomas
68 A.D.3d 514
N.Y. App. Div.
2009
Check Treatment

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v EDWARD THOMAS, Appellant.

Appellate Division of the Supreme Court of New York, First Department

890 N.Y.S.2d 532

The court properly resentenced defendant to comply with the requirement that a term of postrelease supervision (PRS) be part of the court’s oral pronouncement of sentence (see ). The resentencing was not untimely under Correction Law § 601-d (4) (d), because defendant’s attorney consented to adjournments of the proceedings so that defendant could be produced. We reject defendant’s argument that by providing that “[t]he designated person may, with counsel, knowingly consent to extend the time periods specified in paragraphs (c) and (d) of this subdivision,” Correction Law § 601-d (4) (e) requires a defendant’s personal consent. There is nothing in that language, or elsewhere, to suggest that the Legislature intended to add to the very narrow category of fundamental decisions to be made by a defendant personally (see ). In particular, “[s]cheduling matters are plainly among those for which agreement by counsel generally controls” ().

In any event, we also conclude that when a resentencing does not comply with the time limits set forth in Correction Law § 601-d (4) (c) or (d), this does not entitle a defendant to have PRS removed from the sentence. These time limits do not affect a court’s inherent power to correct its error in sentencing (see Correction Law § 601-d [8]; ; see also ).

Defendant failed to preserve his claims that the court lacked authority and jurisdiction to correct his sentence and that double jeopardy and due process protections rendered his resentencing unconstitutional, and we decline to review them in the interest of justice (see , lv granted ). As an alternative holding, we find them without merit (see , lv granted ). Concur—Mazzarelli, J.P., Andrias, Saxe, Catterson and Acosta, JJ.

Concur—Mazzarelli, J.P., Andrias, Saxe, Catterson and Acosta, JJ.