| People v Alvarado |
| 2013 NY Slip Op 06192 [109 AD3d 1185] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vHector Alvarado, Appellant. |
—[*1] Hector Alvarado, defendant-appellant pro se. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel),for respondent.
Appeal from a resentence of the Cayuga County Court (Mark H. Fandrich, A.J.),rendered May 3, 2011. Defendant was resentenced upon his conviction of assault in thesecond degree.
It is hereby ordered that said appeal is unanimously dismissed.
Memorandum: Defendant appeals from a resentence with respect to his conviction in2001 of, inter alia, assault in the second degree (Penal Law § 120.05 [3]).Defendant was incarcerated at the time of the conviction, and County Court (Contiguglia,A.J.) originally directed that the sentences imposed on the assault count and anothercount were to run concurrently to each other and consecutively to the sentence defendantwas serving. At the resentencing, County Court (Fandrich, A.J.), with the consent of thePeople, imposed the same sentence that was imposed in 2001 (see CorrectionLaw § 601-d [3]), without postrelease supervision. As a preliminary matter, wenote that defendant raises contentions in his pro se supplemental brief related to theunderlying conviction. Inasmuch as defendant failed to appeal from the judgment ofconviction and the resentence occurred more than 30 days after the original sentence, theappeal is from the resentence only (see CPL 450.30 [3]). Thus, defendant'scontentions in his pro se supplemental brief are not properly before us (see People v Pelczynski, 43AD3d 1279, 1279 [2007]; People v Coble, 17 AD3d 1165, 1165 [2005], lv denied5 NY3d 787 [2005]).
The People correctly concede that defendant had completed his sentence prior to thedate of resentencing. We therefore agree with defendant that the court lacked authority toresentence him (see People vWilliams, 14 NY3d 198, 217 [2010], cert denied 562 US —, 131S Ct 125 [2010]), and that the resentencing was in violation of the constitutionalprohibition against double jeopardy (see generally People v Velez, 19 NY3d 642, 649 [2012]).Although no period of postrelease supervision (PRS) was added (cf. id.;Williams, 14 NY3d at 209), we nevertheless conclude that, because the courtcould have imposed a period of PRS following the completion of defendant's sentence,he was improperly subjected to " 'multiple punishments for the same offense insuccessive proceedings' " (People v Gause, 19 NY3d 390, 394 [2012]). However,because "we cannot afford defendant any meaningful relief," we dismiss the appeal asmoot (People v Facen, 67AD3d 1478, 1479 [2009], lv denied 14 NY3d 800 [2010],reconsideration denied 15 NY3d 749 [2010]; see People v Jackson, [*2]89 AD3d 1122, 1123 [2011], lv denied 19 NY3d1103 [2012]). Present—Scudder, P.J., Fahey, Sconiers and Valentino, JJ.