| People v Hernandez |
| 2009 NY Slip Op 00631 [59 AD3d 180] |
| February 5, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Efrain Hernandez, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), forrespondent.
Judgment of resentence, Supreme Court, New York County (Michael J. Obus, J.), renderedOctober 17, 2008, resentencing defendant to a term of seven years with five years' postreleasesupervision (PRS), unanimously affirmed.
In December 2005, having served six years of the seven-year determinate term imposedupon his conviction of burglary in the second degree, defendant was granted conditional releaseand began to serve an administratively-imposed mandatory five-year term of postreleasesupervision. Thereafter, in People vSparber (10 NY3d 457 [2008]) and Matter of Garner v New York State Dept. of Correctional Servs. (10NY3d 358 [2008]) the Court of Appeals held that a PRS term is only valid if judiciallyimposed at the time of sentencing, but emphasized that a sentencing court retains the authority tocorrect a procedural sentencing error, even beyond the one year following conviction affordedthe People to seek resentencing under CPL 440.40 (Sparber, 10 NY3d at 469, 471-472;Garner, 10 NY3d at 363 n 4). In response, the Legislature enacted Correction Law§ 601-d, providing a procedural framework for the identification and resentencing of thosedefendants whose convictions required a mandatory PRS component that had not been imposedby the sentencing court. In accordance with the new statute, the court resentenced defendant,imposing a five-year term of PRS.
The court clearly acted under the authority granted to it by the Legislature when it enactedCorrection Law § 601-d. Accordingly, we reject defendant's arguments that theresentencing exceeded the sentencing court's authority to correct an illegal sentence (seePeople v DeValle, 94 NY2d 870 [2000]), and that the court lost jurisdiction to resentencedefendant.
We further reject defendant's claim that double jeopardy and due process protectionsrendered his resentencing unconstitutional. Defendant concedes that his resentencing would havebeen constitutional had it occurred while he was still serving his prison sentence, but argues thatthe resentencing violated his legitimate expectation of finality since the PRS term imposed bythe Department of Correctional Services (DOCS) was a nullity, since he had completed the onlylawfully-imposed portion of his sentence, and since the People's time to seek corrective action byway of an appeal or CPL 440.40 motion had expired. We conclude that defendant had no [*2]legitimate expectation of finality with respect to a determinateseven-year sentence with no attending PRS component (see United States vDiFrancesco, 449 US 117, 138-139 [1980]; United States v Rosario, 386 F3d 166,171 [2d Cir 2004]; United States v Lundien, 769 F2d 981 [4th Cir 1985], certdenied 474 US 1064 [1986]).
Clearly, defendant understood that PRS was a component of his sentence, as he had actuallyserved three years of PRS at the time of resentencing. The fact that DOCS-imposed PRS is anullity does not render it irrelevant to a defendant's expectation of finality. Here, defendant didnot merely "expect" to be subject to PRS; he was actually serving such a term, albeit one thatwas improperly imposed by DOCS instead of the sentencing court. Furthermore, defendant couldnot have had a legitimate expectation in the finality of a sentence that is manifestly contrary tolaw. As noted, both the Court of Appeals and the Legislature have determined that failure toimpose PRS is a defect that is correctable, notwithstanding the expiration of the People's time toappeal or move for resentencing. Finally, defendant's resentencing did not offend notions offundamental fairness, as he was resentenced only to the originally promised determinate term ofseven years, along with the required five-year term of PRS. Concur—Mazzarelli, J.P.,Moskowitz, Renwick and Freedman, JJ.