Opinion
No. 46.
Argued February 15, 2011.
decided April 5, 2011.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered August 4, 2009. The Appellate Division affirmed a judgment of the Supreme Court, New York County (James A. Yates, J.), which had resentenced defendant, as a second felony offender, to a term of three years' imprisonment and five years' postrelease supervision.
On January 27, 2000, defendant pleaded guilty to assault in the second degree. In exchange for his guilty plea, defendant was promised a determinate sentence of three years' imprisonment, and on March 6, 2000, the court imposed the promised term. No mention was made, either at the plea allocution or at the sentencing proceeding, that defendant would be subject to any period of postrelease supervision (PRS). Despite being given written notice of his right to appeal from the judgment, defendant did not do so. In 2002, defendant was released from prison and began serving a term of PRS. In 2007, while still under PRS, he moved to set aside the sentence on the ground that he was not advised at the time of sentencing that his sentence included a period of PRS. The court had defendant produced so it could formally pronounce the PRS component.
People v Jordan, 65 AD3d 428, affirmed.
Legal Aid Society, New York City ( Elon D. Harpaz, Kristina Schwarz and Steven Banks of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York City ( Vincent Rivellese and Susan Axelrod of counsel), for respondent.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed.
In 2000, defendant pleaded guilty to assault in the second degree and was sentenced to three years of imprisonment. After our decision in People v Catu ( 4 NY3d 242), he was resentenced by Supreme Court, which pronounced a term of postrelease supervision that had been mistakenly omitted at the time of the first sentencing. Defendant appealed from the resentencing to the Appellate Division, asking that the conviction and sentence entered on his guilty plea be vacated.
The Appellate Division correctly held that defendant could not challenge his plea on appeal from a resentencing proceeding. CPL 450.30 (3) provides that "when a resentence occurs more than thirty days after the original sentence, a defendant who has not previously filed a notice of appeal from the judgment may not appeal from the judgment, but only from the resentence." An appeal such as this one seeking immediate relief from an underlying judgment of conviction is not one "only from the resentence."
Order affirmed in a memorandum.