People v. Loving

76 A.D.2d 1032, 907 N.Y.S.2d 683

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 21, 2010
• Status: Published

Opinion

Ordered that the resentence is reversed, on the law, the period of postrelease supervision is vacated, and the original sentence imposed on June 13, 2001, is reinstated.

“[O]nce a defendant is released from custody and returns to the community after serving the period of incarceration that was ordered by the sentencing court, and the time to appeal the sentence has expired or the appeal has been finally determined, there is a legitimate expectation that the sentence, although illegal under the Penal Law, is final and the Double Jeopardy Clause prevents a court from modifying the sentence to include a period of postrelease supervision” (People v Williams, 14 NY3d 198, 219-220 [2010]). As the People correctly concede, the imposition of a period of postrelease supervision upon this defendant violated his rights under the Double Jeopardy Clause of the United States Constitution (see US Const 5th Amend; People v Williams, 14 NY3d 198, 219-220 [2010]). Accordingly, the resentence must be reversed, the period of postrelease supervision vacated, and the original sentence reinstated. Mastro, J.P., Florio, Dickerson, Belen and Lott, JJ., concur.