Opinion
2011-11-18
The PEOPLE of the State of New York, Respondent,v.Antonio NUNES, Defendant–Appellant. (Appeal No. 1.)
Michael B. Jones, Buffalo, for Defendant–Appellant.Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of Counsel), for Respondent.
Michael B. Jones, Buffalo, for Defendant–Appellant.Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of Counsel), for Respondent.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10[2][a] ) and, in appeal No. 2, he appeals from the resentence imposed on that conviction. With respect to appeal No. 1, defendant contends that he was “overcharged” with attempted robbery in the second degree because there was no proof of any physical injury to the victim. Defendant validly waived his right to appeal, however, and that valid waiver encompasses his present contention ( see
People v. Jackson, 39 A.D.3d 1089, 1090–1091, 835 N.Y.S.2d 506, lv. denied 9 N.Y.3d 845, 840 N.Y.S.2d 772, 872 N.E.2d 885; see generally People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145).
With respect to appeal No. 2, defendant contends that the resentence, which imposed a period of postrelease supervision that had been omitted from the original sentence, violated the constitutional prohibition against double jeopardy. The Double Jeopardy Clause prohibits the imposition of a period of postrelease supervision at resentencing if it “was not formally pronounced by the sentencing court pursuant to CPL 380.20 ... [and] defendant has served the determinate term of imprisonment and has been released from confinement” by the Department of Correctional Services ( People v. Williams, 14 N.Y.3d 198, 217, 899 N.Y.S.2d 76, 925 N.E.2d 878, cert. denied ––– U.S. ––––, 131 S.Ct. 125, 178 L.Ed.2d 242; see U.S. Const. Amend. V). In this case, however, defendant had not completed serving his initial sentence at the time of the resentencing and, because he had no “legitimate expectation of finality [until that] initial sentence ha[d] been served,” the Double Jeopardy Clause did not bar County Court from resentencing him to impose the required period of postrelease supervision ( Williams, 14 N.Y.3d at 217, 899 N.Y.S.2d 76, 925 N.E.2d 878; cf. People v. Rees, 74 A.D.3d 1815, 902 N.Y.S.2d 488). Finally, the valid waiver by defendant of the right to appeal encompasses his challenge to the severity of the resentence ( see Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).
It is hereby ORDERED that said appeal from the judgment insofar as it imposed sentence is unanimously dismissed and the judgment is otherwise affirmed.