People v. Jones

172 A.D.3d 1774

100 N.Y.S.3d 799

The PEOPLE of the State of New York, Respondent,

v.Nasjuan JONES, Appellant.

109239

Supreme Court, Appellate Division, Third Department, New York.

Decided and Entered: May 23, 2019

Calendar Date: April 22, 2019

Terrence M. Kelly, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Egan Jr., J.P., Mulvey, Devine, Aarons and Rumsey, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P.

The underlying facts in this case are set forth in more detail in this Court's prior decision ( 146 A.D.3d 1078, 45 N.Y.S.3d 261 [2017], lv denied 29 N.Y.3d 999, 57 N.Y.S.3d 720, 80 N.E.3d 413 [2017] ). Briefly stated, and as is relevant to this appeal, defendant pleaded guilty to assault in the first degree and waived his right to appeal. In accordance with the plea agreement, defendant was sentenced to a prison term of 15 years to run concurrently with a sentence simultaneously imposed on another conviction. After the Department of Corrections and Community Supervision advised Supreme Court that a period of postrelease supervision was required in connection with the first degree assault conviction, the court resentenced defendant on that conviction to a prison term of 15 years, followed by 3½ years of postrelease supervision. The amended uniform sentence and commitment order, however, erroneously indicated that defendant was subject only to three years of postrelease supervision.

On appeal to this Court from that resentencing, this Court affirmed the judgment, but remitted the matter for correction of the uniform sentence and commitment order. Upon remittal, Supreme Court directed entry of a second amended uniform sentence and commitment order that properly reflected the imposed 3½ years of postrelease supervision. Defendant appeals.

Defendant's sole contention on appeal is that the plea must be vacated because Supreme Court failed to consider whether to grant defendant youthful offender status in connection with his conviction of assault in the first degree.¹ Defendant's contention is not properly before this Court. On the initial appeal of this matter, this Court affirmed the judgment with respect to defendant's conviction of assault in the first degree and simply remitted the matter for correction of the uniform sentence and commitment order. This in no way amounted to a resentencing with respect to the conviction of assault in the first degree and did not afford defendant an additional opportunity to appeal (see CPL 450.30, 460.10 ). Simply put, appellate review of defe...