| People v Jenkins |
| 2010 NY Slip Op 07825 [78 AD3d 1212] |
| November 4, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v David Jenkins,Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of St. Lawrence County (Rogers, J.),rendered September 10, 2008, which resentenced defendant following his conviction of the crimes ofattempted sodomy in the first degree and sexual abuse in the first degree.
In 2000, as a result of his convictions of attempted sodomy in the first degree and sexual abuse inthe first degree, defendant was sentenced as a second felony offender to concurrent prison terms ofnine years and seven years, respectively. This Court later modified the judgment by vacating thesentence due to a discrepancy between the sentencing minutes and the Sentence andCommitment—Statement of Conviction form (People v Jenkins, 300 AD2d 751,753-754 [2002], lv denied 99 NY2d 615 [2003]). Defendant was thereafter resentenced tothe same term of imprisonment.
In 2008, while defendant was still serving his prison term, he was identified as a "designatedperson" within the meaning of Correction Law § 601-d (1) because his sentence did not includea period of postrelease supervision. Consequently, County Court again resentenced him to concurrentprison terms of nine years and seven years, this time including five years of postrelease supervision inaccordance with Penal Law § 70.45. This appeal ensued.
Initially, defendant's argument that his appellate counsel was ineffective may be [*2]entertained only in a common-law coram nobis proceeding and,therefore, is not properly before this Court (see People v Bachert, 69 NY2d 593, 596-597[1987]; People v Keebler, 15 AD3d724, 728 [2005], lv denied 4 NY3d 854 [2005]). Next, we are unpersuaded bydefendant's claim that he was subjected to double jeopardy by the 2008 resentencing. Defendant hadnot yet completed serving his initial sentence (see generally Penal Law § 70.30 [1] [a])and, thus, the illegal sentence was still subject to correction without invoking the protection againstdouble jeopardy (see People v Becker,72 AD3d 1290, 1291 [2010], lv denied 15 NY3d 747 [2010]; see also People v Parisi, 72 AD3d 989,990 [2010], lv granted 15 NY3d 776 [2010]; cf. People v Williams, 14 NY3d 198, 217, 219-220 [2010], certdenied 562 US 131 S Ct 125 [2010]). Finally, County Court properly ruled that defendant's 2008motion to set aside the verdict pursuant to CPL 330.30 was untimely inasmuch as it was not made priorto the original sentence (see People v Richards, 266 AD2d 714, 715 n [1999], lvdenied 94 NY2d 924 [2000]). Defendant's remaining contentions have been examined and foundto be unpersuasive.
Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.