Opinion
2012-03-27
The PEOPLE, etc., appellant, v. Michael GORDON, respondent.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for appellant. Steven Banks, New York, N.Y. (Steven J. Miraglia of counsel), for respondent.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for appellant. Steven Banks, New York, N.Y. (Steven J. Miraglia of counsel), for respondent.
Appeal by the People from an order of the Supreme Court, Kings County (Brennan, J.), dated March 30, 2010, which, upon the defendant's conviction of robbery in the first degree (two counts) and criminal possession of a weapon in the second degree, upon a jury verdict, granted the defendant's motion pursuant to CPL 440.20 and Penal Law § 70.85 to vacate a resentence of the same court imposed December 5, 2008, which imposed a period of postrelease supervision in addition to the determinate terms of imprisonment previously imposed on May 8, 2000.
ORDERED that the order is reversed, on the law, and the motion is denied.
Since the defendant had not yet completed his originally imposed sentence of imprisonment when he was resentenced, the resentencing to a term including the statutorily required period of postrelease supervision did not subject him to double jeopardy or violate his right to due process of law ( see People v. Lingle, 16 N.Y.3d 621, 926 N.Y.S.2d 4, 949 N.E.2d 952; People v. Edwards, 89 A.D.3d 1034, 933 N.Y.S.2d 564; People v. Douglas, 89 A.D.3d 959, 932 N.Y.S.2d 722; People v. Harris, 89 A.D.3d 863, 932 N.Y.S.2d 357; People v. Algarin, 89 A.D.3d 859, 932 N.Y.S.2d 358, lv. denied *871 18 N.Y.3d 881, 939 N.Y.S.2d 751, 963 N.E.2d 128; People v. Dawkins, 87 A.D.3d 550, 927 N.Y.S.2d 797). Accordingly, the Supreme Court erred in granting the defendant's motion to vacate the resentence.