Opinion
2001-05814
Argued May 31, 2002.
September 10, 2002.
Appeal by the defendant, by permission, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Firetog, J.), dated June 6, 2001, as upon granting that branch of his motion pursuant to CPL 440.20(1) which was to vacate the sentence imposed upon a judgment convicting him of manslaughter in the first degree, rendered May 12, 1999, upon his plea of guilty, denied that branch of his motion which was to resentence him to an indeterminate term of imprisonment of 6 to 18 years, and, instead, in effect, directed that he be resentenced to an indeterminate term of imprisonment of 7 to 21 years.
Lynn W. L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., SANDRA J. FEUERSTEIN, GABRIEL M. KRAUSMAN, STEPHEN G. CRANE, JJ.
ORDERED that the order is reversed insofar as appealed from, on the law, the resentence is vacated, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.
As the People correctly concede, under the circumstances of this case, the defendant established a legitimate expectation in the finality of his original maximum sentence of 18 years' imprisonment, and the Supreme Court's imposition of a maximum term of imprisonment of more than 18 years upon resentencing the defendant violated the prohibition against double jeopardy (see Stewart v. Scully, 925 F.2d 58, 62-65; People v. Hoppie, 220 A.D.2d 528, 529). The illegality of the defendant's original sentence should have been corrected by reducing the minimum term of imprisonment to one-third of the maximum.
FLORIO, J.P., FEUERSTEIN, KRAUSMAN and CRANE, JJ., concur.