| People v Grant |
| 2010 NY Slip Op 06098 [75 AD3d 558] |
| July 13, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Travis Grant, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Solomon Neubortof counsel), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Kings County (Marrus, J.),imposed January 9, 2009, which, upon his conviction of criminal possession of a weapon in thesecond degree, upon his plea of guilty, imposed a term of postrelease supervision in addition tothe determinate term of imprisonment previously imposed on June 13, 2001.
Ordered that the resentence is reversed, on the law, the term of postrelease supervision isvacated, and the original sentence imposed on June 13, 2001, is reinstated.
The defendant pleaded guilty to criminal possession of a weapon in the second degree and,in June 2001, he was sentenced to a determinate term of imprisonment of eight years. TheSupreme Court did not impose a period of postrelease supervision (hereinafter PRS). Thedefendant was released from prison on June 9, 2008, several months prior to the maximumexpiration date of his prison term, which was January 31, 2009. On January 9, 2009, thedefendant was brought before the Supreme Court, pursuant to Correction Law § 601-d,and the Supreme Court resentenced him to the original prison term, with an accompanying2½-year period of PRS (see Penal Law § 70.45).
Although, at the time of the resentencing, the defendant had been released from prison, thePeople assert that he had not completed his term of imprisonment since, until January 31, 2009,he was still subject to reconfinement if he violated the terms of his conditional release. Thus, thePeople contend that a period of PRS could be added to the defendant's sentence without violatingthe Double Jeopardy Clause of the federal Constitution (US Const 5th Amend), as interpreted bythe Court of Appeals in People vWilliams (14 NY3d 198 [2010]).
Contrary to the People's contention, the Court of Appeals held in Williams that adefendant's "release from incarceration erect[s] a Double Jeopardy Clause barrier to anysubsequent upward modifications of [his or her] original sentence[ ]" (id. at 219).Notwithstanding those portions of the Williams decision which refer to a defendant'scompletion of his or her sentence in addition to his or her release from prison, we conclude that,in determining when a defendant develops a legitimate expectation of finality in his or hersentence, thus rendering any enhancement of that sentence unconstitutional, the Court ofAppeals attached ultimate significance to the [*2]defendant'srelease date (see People v Jordan, 15 NY3d 727 [2010]; People v Hassell, 14NY3d 925 [2010]; People v Williams, 14 NY3d 924 [2010]; People v Wells, 28Misc 3d 628 [Sup Ct, Queens County 2010]).
Thus, the resentencing court's addition of a period of PRS to the defendant's sentence afterthe defendant had been released from prison violated the Double Jeopardy Clause. Accordingly,the resentence must be reversed and the original sentence reinstated (see People vWilliams, 14 NY3d at 222).
In light of our determination, we need not address the defendant's remaining contention.Prudenti, P.J., Rivera, Santucci and Miller, JJ., concur.