This matter comes on by application of the People to re-sentence defendant to a five year term of post release supervision (PRS) which was mandated but not pronounced at his sentencing in 2000.

Defendant, through his attorney, opposes re-sentencing to PRS at this late date.

The People first submitted written argument dated September 6, 2011. Defendant submitted opposition dated September 13, 2011. Pursuant to court request further submission was made by the People dated November 15, 2011 and further submission was made by the defendant dated December 22, 2011. The matter was scheduled for re-sentencing on January 5, 2012. It was adjourned on consent until February 6, 2012.

Defendant was found guilty, after jury trial, of arson in the second degree. He was sentenced to a determinate term in state prison of twenty-five years on August 7, 2000. Although mandatory, PRS was not mentioned or imposed. [*2]

The People were informed by letter dated June 28, 2011 from the New York State Department of Corrections (DOCS) that defendant was still in state prison but was never sentenced to PRS as mandatorily required by statute.

The next day, June 29, 2011, the People informed the Court, scheduled a re-sentence date of July 18, 2011 with the Court Clerk and prepared and served an Order To Produce the defendant for July 18, 2011.

This Court appointed Frances S. Clemente, Esq. to represent the defendant herein.

As mentioned above, this matter was scheduled for re-sentencing, was adjourned for written submissions and is now fully submitted.

The defendant argues that the re-sentencing is untimely and PRS should not be imposed herein.

The defendant is in error. Post Release Supervision must be imposed.

The failure of a sentencing court to impose mandatory PRS is known as a "Sparber error" and the remedy is to re-sentence the defendant. See, People v Sparber, 10 NY3d 457 (2008).

A defendant subject to mandatory PRS has a statutory right under CPL §380.20 and 380.40 to have a judge impose the PRS sentence in open court. People v Sparber, supra.

Two questions remained open after Sparber; 1. must a court re-sentence the defendant to PRS and 2. may a court reconsider a different term of incarceration at re-sentencing.

This questions were both answered in the negative by the now controlling case of People v Lingle, 16 NY3d 621 (2011).

In Lingle the Court of Appeals pronounced that upon re-sentence for a "Sparber error" the sentencing court must impose the mandatory PRS and cannot reconsider the originally sentenced term of incarceration.

The only exceptions to imposing the mandatory PRS are when the People consent to waive the PRS or when the re-sentencing is requested more than twenty days after the error is discovered pursuant to Corrections Law §601-d(4)(a). Neither of these exceptions are present herein.

This Court finds that the defendant was not originally sentenced to a period of PRS as mandatorily required by statute on August 7, 2000. While the defendant was still incarcerated upon his originally sentence, the People and the Court were noticed by DOCS of the "Sparber [*3]error" and acted to assign an attorney to the defendant and to schedule re-sentencing within twenty days of said notice. The People have not waived the imposition of PRS. That People v Lingle, supra is controlling herein.

Based upon the above, it is

ORDERED, that the defendant shall be re-sentenced on February 6, 2012 to his original sentence with the mandatorily required five (5) years Post Release Supervision imposed thereon.

This shall constitute the Decision and Order of this Court.

DATED: January 6, 2012

Monticello, NY

___________________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate