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Okay to Resentence to Determinate Sentence With No Postrelease Supervision Where Initial Sentence Omitted Reference to Postrelease Supervision

The Fourth Department determined defendant was properly resentenced to a determinate sentence without a period of post-release supervision as a remedy for the failure to inform the defendant of the post-release supervision the first time around:

…[T]he court properly resentenced defendant pursuant to Penal Law § 70.85 to the original sentence without imposing a period of PRS.  The statute permits the sentencing judge, with the consent of the People, to “re-impose the originally imposed determinate sentences of imprisonment without any term of post-release supervision.”  The statute was enacted to “avoid the need to vacate guilty pleas under … when defendants are not properly advised of mandatory terms of postrelease supervision” … .  Here, the People requested that the court resentence defendant pursuant to section 70.85, and the court granted that request.  The fact that defendant did not ask for resentencing is of no moment … People v Bennefield, 920, 4th Dept 9-27-13

 

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