People v. Byron , 997 N.Y.S.2d 906 ( 2015 )

People v Byron (2015 NY Slip Op 00386)

People v Byron

2015 NY Slip Op 00386

Decided on January 14, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 14, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
JEFFREY A. COHEN
COLLEEN D. DUFFY
HECTOR D. LASALLE, JJ.

2012-05696
(Ind. No. 113/99)

[*1]The People of the State of New York, respondent,

v

Darryl Byron, appellant.

Lynn W. L. Fahey, New York, N.Y. (David G. Lowry of counsel), for appellant, and appellant pro se.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Deborah E. Wassel of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a resentence of the Supreme Court, Queens County (McGann, J.), imposed May 31, 2012, upon his conviction of rape in the first degree, upon a jury verdict, the resentence being five years of postrelease supervision in addition to a determinate term of imprisonment previously imposed by the same court on March 12, 2001.

ORDERED that the resentence is affirmed.

The defendant's resentencing to a term that included the statutorily required period of postrelease supervision did not subject him to double jeopardy or violate his right to due process of law (see People v Lingle, 16 NY3d 621; People v Ravenell, 120 AD3d 516, 517; People v Nova, 116 AD3d 445, 445). The defendant's contention regarding his adjudication as a second violent felony offender was not properly before the court at the resentencing, which was limited to the imposition of the period of postrelease supervision (see People v Boyer, 22 NY3d 15, 24).

The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit.

BALKIN, J.P., COHEN, DUFFY and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court