Opinion
2012-01-5
The PEOPLE of the State of New York, Respondent, v. Robert CASS, Appellant.
Tara Brower Wells, Latham, for appellant. Kevin C. Kortwright, District Attorney, Fort Edward (Katherine G. Henley of counsel), for respondent.
Tara Brower Wells, Latham, for appellant. Kevin C. Kortwright, District Attorney, Fort Edward (Katherine G. Henley of counsel), for respondent.
Before: SPAIN, J.P., LAHTINEN, MALONE JR., STEIN and EGAN JR., JJ.
SPAIN, J.P.
Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered January 9, 2009, which resentenced defendant following his conviction of the crime of sexual abuse in the first degree (two counts).
Defendant pleaded guilty to two counts of sexual abuse in the first degree and was sentenced in accordance with the plea agreement to consecutive prison terms of four years. The judgment of conviction was affirmed upon appeal to this Court (301 A.D.2d 681, 752 N.Y.S.2d 908 [2003] ). Following defendant's release from prison, County Court was notified that he was a “designated person” (Correction Law § 601–d) inasmuch as the sentences imposed required, but did not include, a period of postrelease supervision ( see Penal Law § 70.45). Thereafter, the court resentenced defendant to include a period of postrelease supervision for each conviction. This appeal by defendant ensued.
Defendant contends, among other things, that the imposition of the postrelease supervision violated the Double Jeopardy Clause of the 5th Amendment to the U.S. Constitution. It is settled that where “a defendant is released from custody and returns to the community after serving the period of incarceration that was ordered by the sentencing court, and the time to appeal the sentence has expired or the appeal has been finally determined,” a legitimate expectation of the original sentence's finality arises and double jeopardy precludes the modification of that sentence to include a period of postrelease supervision ( People v. Williams, 14 N.Y.3d 198, 219–220, 899 N.Y.S.2d 76, 925 N.E.2d 878 [2010], cert. denied *907 562 U.S. ––––, 131 S.Ct. 125, 178 L.Ed.2d 242 [2010]; see People v. Backus, 73 A.D.3d 1342, 1343, 901 N.Y.S.2d 746 [2010]; People v. Peer, 73 A.D.3d 1341, 1342, 901 N.Y.S.2d 747 [2010]; accord People v. Embrey, 75 A.D.3d 661, 662, 903 N.Y.S.2d 279 [2010]; cf. People v. Lingle, 16 N.Y.3d 621, 630–631, 926 N.Y.S.2d 4, 949 N.E.2d 952 [2011] ). Inasmuch as defendant's direct appeal is final and he has been released from custody, we find (and the People concede) that the period of postrelease supervision imposed upon resentencing must be vacated and the original sentence reinstated. In light of this determination, we do not address defendant's remaining contentions.
ORDERED that the judgment is modified, on the law, by vacating that part of the resentence as imposed a period of postrelease supervision, and, as so modified, affirmed.