People v Gillard

2015 NY Slip Op 02225 [126 AD3d 1285]

March 20, 2015

Appellate Division, Fourth Department

As corrected through Wednesday, April 29, 2015

[*1](March 20, 2015)

The People of the State of New York,Respondent, v Jerry Gillard, Appellant.

Jerry Gillard, defendant-appellant pro se.

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.

Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe Fourth Judicial Department, from an order of the Onondaga County Court (Thomas J.Miller, J.), dated February 25, 2014. The order denied defendant's motion pursuant toCPL 440.10 and 440.20 to, among other things, vacate the judgment convictingdefendant of attempted criminal possession of a weapon in the third degree.

It is hereby ordered that the order so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from an order denying his motion pursuant to CPL440.10 and 440.20 seeking to vacate the judgment convicting him, upon his plea ofguilty, of attempted criminal possession of a weapon in the third degree (Penal Law§§ 110.00, 265.02 [former (4)]) or to set aside the sentence imposedthereon. County Court properly concluded that defendant should have been sentenced asa second felony offender to a period of five years' postrelease supervision rather than aperiod of 11/2 years (see People v Hawkins, 45 AD3d 989, 992 [2007], lvdenied 9 NY3d 1034 [2008]; People v Jordan, 21 AD3d 907, 908 [2005], lv denied5 NY3d 883 [2005]). The court properly declined to vacate the judgment or set asidethe sentence, however, inasmuch as defendant completed serving his sentence ofincarceration and postrelease supervision and the Double Jeopardy Clause precluded aresentence adding to the period of postrelease supervision (see People v Williams, 14NY3d 198, 217 [2010], cert denied 562 US 947 [2010]). Further, inasmuchas defendant is subject to "lifetime parole supervision, the imposition of postreleasesupervision following his imprisonment for [attempted criminal possession of a weapon]is duplicative and does not deprive him of the benefit of his plea bargain" (People v Haynes, 14 AD3d789, 791 [2005], lv denied 4 NY3d 831 [2005]). Present—Scudder,P.J., Centra, Lindley, Sconiers and DeJoseph, JJ.