SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

333 

KA 11-00858 

PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

MARCHE JOHNSON, DEFENDANT-APPELLANT. 

 

ADAM H. VAN BUSKIRK, AURORA, FOR DEFENDANT-APPELLANT. 

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a resentence of the Cayuga County Court (Mark H.

Fandrich, A.J.), rendered April 12, 2011. Defendant was resentenced

upon his conviction of robbery in the second degree. 

It is hereby ORDERED that the resentence so appealed from is

affirmed. 

Memorandum: Defendant was convicted upon his plea of guilty of

robbery in the second degree (Penal Law § 160.10 [1]), and he appeals

from the resentence on that conviction. County Court (Corning, J.)

originally sentenced defendant as a second violent felony offender to

a determinate term of imprisonment of 10 years, but it failed to

impose a period of postrelease supervision, as required by Penal Law §

70.45 (1). The court (Fandrich, A.J.) resentenced defendant to the

same term of imprisonment to be followed by five years of postrelease

supervision. 

Defendant failed to preserve for our review his contention that

the court should have assigned defendant substitute counsel, inasmuch

as the record reflects that both defendant and the court understood

that defendant sought an adjournment in order to retain counsel and

did not request new assigned counsel (see CPL 470.05 [2]). We decline

to exercise our power to review that contention as a matter of

discretion in the interest of justice (see CPL 470.15 [6] [a]). 

We agree with defendant, however, that the court failed to

conduct a searching inquiry to ensure that defendant’s waiver of the

right to counsel was unequivocal, voluntary and intelligent (see

People v Smith, 92 NY2d 516, 520). Thus, “[t]he sentencing court

erred by permitting defendant to represent himself at his ultimate

sentencing proceeding” (People v Adams, 52 AD3d 243, 243, lv denied 11

NY3d 829). That error, however, does not warrant reversal of

defendant’s resentence because “the tainted proceeding had no adverse
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KA 11-00858 

impact . . ., and a remand for resentencing would serve no useful

purpose” (id. at 244; see generally People v Wardlaw, 6 NY3d 556,

559). Indeed, defense counsel, speaking on behalf of defendant,

admitted that defendant was advised during the plea proceedings that a

period of postrelease supervision would be imposed, and thus there

were no issues to be litigated with respect to defendant’s sentence

(see generally People v Lingle, 16 NY3d 621, 634-635; cf. People v

Verhow, 83 AD3d 1528, 1528-1529).

We have considered defendant’s remaining contentions and conclude

that they are without merit.

All concur except FAHEY, J., who dissents and votes to reverse in

accordance with the following Memorandum: I respectfully dissent. In

my view, the record of the February 15, 2011 proceeding reflects that

the People stipulated that the court may resentence defendant without

imposing a period of postrelease supervision pursuant to Penal Law §

70.85 (see People v Swanston, 277 AD2d 600, 602, lv denied 96 NY2d

739; see also CPLR 2104; CPL 60.10). I would therefore reverse the

resentence and remit the matter to County Court for further

resentencing.

Entered: April 27, 2012 Frances E. Cafarell

Clerk of the Court