Opinion
2012-03-27
The PEOPLE, etc., appellant, v. Michael TOPP, respondent.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for appellant. Lynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for respondent.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for appellant. Lynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for respondent.
Appeal by the People from an order of the Supreme Court, Kings County (Firetog, J.), dated April 20, 2010, which, upon the defendant's conviction of attempted murder in the second degree, upon his plea of guilty, granted the defendant's motion pursuant to CPL 440.20 and Penal Law § 70.85 to vacate a resentence of the same court imposed June 3, 2009, which imposed a period of postrelease supervision in addition to the determinate term of imprisonment previously imposed on March 30, 2001.
ORDERED that the order is reversed, on the law, and the motion is denied.
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. Edwards, 89 A.D.3d 1034, 933 N.Y.S.2d 564; People v. Douglas, 89 A.D.3d 959, 932 N.Y.S.2d 722; People v. Harris, 89 A.D.3d 863, 932 N.Y.S.2d 357; People v. Algarin, 89 A.D.3d 859, 932 N.Y.S.2d 358, lv. denied 18 N.Y.3d 881, 939 N.Y.S.2d 751, 963 N.E.2d 128; People v. Dawkins, 87 A.D.3d 550, 927 N.Y.S.2d 797). Accordingly, the Supreme Court erred in granting the defendant's motion to vacate the resentence.
Moreover, this Court lacks the authority to reconsider the incarceratory component of the defendant's sentence on this appeal ( cf. People v. Lingle, 16 N.Y.3d at 635, 926 N.Y.S.2d 4, 949 N.E.2d 952; People v. Edwards, 89 A.D.3d 1034, 933 N.Y.S.2d 564; People v. Myrick, 84 A.D.3d 1272, 923 N.Y.S.2d 346).