People v. Shanks

272 A.D.2d 153, 708 N.Y.S.2d 14, 2000 N.Y. App. Div. LEXIS 5392

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 2000
• Status: Published

Opinion

—Judgment of resentence, Supreme Court, New York County (Carol Berk-man, J.), rendered October 29, 1998, convicting defendant, upon his plea of guilty, of manslaughter in the second degree, and sentencing him, as second felony offender, to a term of 5 to 10 years, unanimously affirmed.

The court’s vacatur of the unlawful determinate sentence of 7 years originally imposed and its imposition of the lawful sentence of 5 to 10 years did not violate the prohibition against double jeopardy. Given all relevant legal and practical considerations concerning parole and conditional release, the two sentences were sufficiently comparable that defendant’s legitimate expectation of finality was not violated (see, People v Williams, 87 NY2d 1014; Stewart v Scully, 925 F2d 58). Even if the new sentence were to be viewed as violating defendant’s plea agreement, the proper remedy would be vacatur of the plea, a remedy defendant has not pursued either at resentencing or on appeal (see, People v DeValle, 94 NY2d 870). Concur— Nardelli, J. P., Tom, Mazzarelli, Wallach and Andrias, JJ.