People v DeJesus

2011 NY Slip Op 03873 [84 AD3d 832]

May 3, 2011

Appellate Division, Second Department

As corrected through Wednesday, July 6, 2011

The People of the State of New York,Respondent, v Carmelo DeJesus, Appellant.

—[*1]Lynn W.L. Fahey, New York, N.Y. (Ellen Fried of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, KarenWigle-Weiss, and Danielle S. Fenn of counsel), for respondent.

Appeal by the defendant from a resentence of the Supreme Court, Queens County (Erlbaum,J.), imposed September 17, 2009, which, upon his conviction of assault in the first degree,aggravated criminal contempt, and criminal possession of a weapon in the fourth degree, upon ajury verdict, imposed a period of postrelease supervision in addition to the concurrentdeterminate terms of imprisonment previously imposed on July 1, 2003.

Ordered that the resentence is affirmed.

The defendant was convicted, after a jury trial, of assault in the first degree, aggravatedcriminal contempt, and criminal possession of a weapon in the fourth degree. On July 1, 2003, hewas sentenced to a determinate term of imprisonment of 10 years on the conviction of assault inthe first degree, an indeterminate term of imprisonment of 21/3 to 7 years on theconviction of aggravated criminal contempt, and a determinate term of imprisonment of one yearon the conviction of criminal possession of a weapon in the fourth degree. However, the SupremeCourt did not impose the statutorily required period of postrelease supervision. On September 17,2009, the defendant was brought before the Supreme Court for resentencing so the mandatoryperiod of postrelease supervision could be imposed (see Penal Law § 70.45;Correction Law § 601-d).

Since the defendant had not yet completed his originally-imposed sentence of imprisonmentwhen he was resentenced, the resentencing to a term including the statutorily required period ofpostrelease supervision did not subject him to double jeopardy or violate his right to due processof law (see People v Lingle, 16 NY3d 621 [2011]).

A court to which a matter has been remitted for resentencing solely for the purpose ofimposing a required term of postrelease supervision does not have the authority to considerwhether to reduce the defendant's sentence as a whole (id.). Skelos, J.P., Leventhal, Sgroiand Miller, JJ., concur.