| People v Sharlow |
| 2010 NY Slip Op 06106 [75 AD3d 568] |
| July 13, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Darryl Sharlow, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort,and Bruce Alderman of counsel), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Kings County (Brennan,J.), imposed September 17, 2008, which, upon his conviction of burglary in the second degreeand petit larceny, upon his plea of guilty, imposed a period of postrelease supervision in additionto the determinate term of imprisonment previously imposed on November 1, 2002.
Ordered that the resentence is reversed, on the law, the term of postrelease supervision isvacated, and the original sentence imposed on November 1, 2002, is reinstated.
In October 2000 the defendant was convicted, upon his plea of guilty, of burglary in thesecond degree and petit larceny. In November 2002 he was sentenced to a determinate term ofincarceration of seven years on the conviction of burglary in the second degree and a definite jailterm of one year on the conviction of petit larceny. While the defendant was serving his prisonterm, the New York State Department of Correctional Services administratively "imposed" aperiod of postrelease supervision (hereinafter PRS), a practice found unlawful by the Court ofAppeals (see Matter of Garner v NewYork State Dept. of Correctional Servs., 10 NY3d 358 [2008]). After serving six yearsof his determinate term, the defendant was conditionally released. Thereafter, on September 17,2008, the Supreme Court resentenced the defendant to a determinate term of incarceration ofseven years plus a five-year period of PRS on the conviction of burglary in the second degree(see Correction Law § 601-d; Penal Law § 70.85). The defendant contendsthat his resentencing violated the federal constitutional prohibition against double jeopardy. Weagree.
The defendant's release from prison erected a bar under the Double Jeopardy Clause of theUnited States Constitution (US Const, 5th Amend) to the addition thereafter of a period of PRSto his sentence (see People vWilliams, 14 NY3d 198 [2010]; People v Grant, 75 AD3d 558 [2010] [decidedherewith]). Accordingly, the resentence must be reversed and the original sentence reinstated.Fisher, J.P., Angiolillo, Belen and Lott, JJ., concur.