People v. Hoppie

220 A.D.2d 528, 632 N.Y.S.2d 33, 1995 N.Y. App. Div. LEXIS 9929

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 10, 1995
• Status: Published

Opinion

—Appeal by the defendant, as limited by his motion, from an amended sentence of the Supreme Court, Kings County (Gerges, J.), imposed November 5, 1993, upon his conviction of attempted murder in the second degree, upon his plea of guilty, the amended sentence being an indeterminate term of imprisonment of 31/2 to 101/2 years.

Ordered that the amended sentence is modified, on the law, by reducing it to an indeterminate term of imprisonment of 22ls to 8 years; as so modified, the amended sentence is affirmed.

We agree with the defendant that, under the unusual circumstances of this case, he established a legitimate expectation in the finality of his original sentence of 8 years’ imprisonment, and the Supreme Court’s imposition of a maximum term of imprisonment of more than 8 years upon resentencing the defendant violated the prohibition against double jeopardy (see, Stewart v Scully, 925 F2d 58). The illegality of the defendant’s original sentence should have been corrected by reducing the minimum term of imprisonment to one third of the maximum. Mangano, P. J., Sullivan, Balletta, Santucci and Krausman, JJ., concur.