Opinion
4 KA 14-00465
03-20-2015
The PEOPLE of the State of New York, Respondent, v. Jerry GILLARD, Defendant–Appellant.
Jerry Gillard, Defendant–Appellant Pro Se. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Jerry Gillard, Defendant–Appellant Pro Se.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:Defendant appeals from an order denying his motion pursuant to CPL 440.10 and 440.20 seeking to vacate the judgment convicting him, upon his plea of guilty, 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 imposed thereon. County Court properly concluded that defendant should have been sentenced as a second felony offender to a period of five years' postrelease supervision rather than a period of one and a half years (see People v. Hawkins, 45 A.D.3d 989, 992, 845 N.Y.S.2d 171, lv. denied 9 N.Y.3d 1034, 852 N.Y.S.2d 20, 881 N.E.2d 1207 ; People v. Jordan, 21 A.D.3d 907, 908, 800 N.Y.S.2d 630, lv. denied 5 N.Y.3d 883, 808 N.Y.S.2d 586, 842 N.E.2d 484 ). The court properly declined to vacate the judgment or set aside the sentence, however, inasmuch as defendant completed serving his sentence of incarceration and postrelease supervision and the Double Jeopardy clause precluded a resentence adding to the period of postrelease supervision (see People v. Williams, 14 N.Y.3d 198, 217, 899 N.Y.S.2d 76, 925 N.E.2d 878,cert. denied 562 U.S. 947, 131 S.Ct. 125, 178 L.Ed.2d 242 ). Further, inasmuch as defendant is subject to “ lifetime parole supervision, the imposition of postrelease supervision 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 A.D.3d 789, 791, 788 N.Y.S.2d 469, lv. denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed.