Opinion
2011-11-22
The PEOPLE, etc., respondent, v. Malik EDWARDS, appellant.
Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel; Meghan McCarthy on the brief), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel; Samuel K. Mersky on the brief), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure of counsel; Meghan McCarthy on the brief), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel; Samuel K. Mersky on the brief), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Kings County (Dowling, J.), imposed November 15, 2010, which, upon his conviction of attempted murder in the second degree, imposed a period of postrelease supervision of 2 1/2 years, in addition to the determinate sentence of imprisonment originally imposed on October 24, 2000.
ORDERED that the resentence is affirmed.
Since the defendant had not yet completed his originally imposed sentence of imprisonment when he was resentenced, the resentencing to a term including the statutorily required period of postrelease supervision did not subject him to double jeopardy or violate his right to due process of law ( see People v. Lingle, 16 N.Y.3d 621, 926 N.Y.S.2d 4, 949 N.E.2d 952; People v. Dawkins, 87 A.D.3d 550, 927 N.Y.S.2d 797; People v. Myrick, 84 A.D.3d 1272, 923 N.Y.S.2d 346, lv. denied 17 N.Y.3d 820, 929 N.Y.S.2d 808, 954 N.E.2d 99).
On an appeal from a resentence to correct a Sparber error ( People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459), this Court lacks the authority to reconsider the incarceratory component of the defendant's sentence ( see People v. Lingle, 16 N.Y.3d at 635, 926 N.Y.S.2d 4, 949 N.E.2d 952; People v. Myrick, 84 A.D.3d at 1272, 923 N.Y.S.2d 346).