The opinion of the court was delivered by: Richard Lee Price, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
On November 27, 2001, Petitioner pleaded guilty to robbery in the first degree. On December 13, 2001, this Court sentenced him to a determinate term of six years imprisonment. Thereafter, a five-year period of post-release supervision ("PRS") was administratively added to his sentence by the Department of Correctional Services ("DOCS"). After his release from custody, Petitioner was arrested and incarcerated for alleged violations of the conditions governing his PRS. On June 16, 2008, this Court resentenced Petitioner by adding a two-and-a-half year term of PRS nunc pro tunc to his sentence. On June 20, 2008, Petitioner, through his Legal Aid attorney, made the instant application seeking the following relief: (1) immediate release from custody; and, (2) reargument of the Court's decision to resentence him on June 16, 2008. On July 29, 2008, this Court sustained the writ, ordered Petitioner released from custody and vacated the administratively imposed PRS term and the parole violation. This Court held in abeyance Petitioner's application for reargument of the Court's decision to resentence him. See July 29, 2008 Decision and Order.
On November 27, 2001, Petitioner pleaded guilty to robbery in the first degree in full satisfaction of Indictment Number 2136/01 in exchange for a promise of six years imprisonment. At the plea, the Court informed Petitioner that he would be subject to a five-year period of PRS. On December 13, 2001, the Court sentenced Petitioner to a determinate term of six years imprisonment in accordance with the negotiated plea. No period of PRS was pronounced at sentencing or set forth on the commitment sheet. After sentencing, DOCS administratively added a five-year period of PRS to Petitioner's sentence. Petitioner served the term of imprisonment imposed by the Court and was released from custody on or about March 12, 2007.
On April 10, 2008, Petitioner was arrested and incarcerated under Warrant #577062 for alleged violations of the conditions of his PRS. On April 17, 2008, The Legal Aid Society was assigned to represent Petitioner at revocation proceedings commenced against him by respondent Division of Parole ("Division").
By letter dated June 2, 2008, Division requested that the Court resentence Petitioner on his first degree robbery conviction under Indictment No. 2136/01 by adding a period of PRS to the sentence previously imposed, in accordance with the Court of Appeals' determination in People v Sparber, 10 NY3d 457 (2008). Division did not send a copy of this letter to The Legal Aid Society.
On June 16, 2008,*fn1 Petitioner was produced by the Bronx County District Attorney's Office for resentencing before this Court. Although the assigned attorney who represented Petitioner at plea and sentence appeared at resentencing, no one from The Legal Aid Society was present for the proceeding. This Court resentenced Petitioner by adding a period of two-and-a-half years of PRS to his sentence. The Legal Aid attorney did not learn that Petitioner had been brought to the Bronx County Supreme Court for resentencing until the following day.
On June 20, 2008, Petitioner, represented by The Legal Aid Society, filed an Affirmation in Support of Writ of Habeas Corpus*fn2 and Reargument of Resentencing Decision, arguing, in pertinent part: this Court lacked jurisdiction to resentence Petitioner because he had completed his determinate six-year sentence; and, resentencing violated his reasonable expectation of finality, his due process right and the prohibition against double jeopardy under the federal and state constitutions. U.S. Const. Amends, V, XIV; NY Const. Art. I §6. On July 29, 2008, the People filed an Affirmation in Opposition to Reargument of Resentencing Decision arguing that the Court retains jurisdiction to correct an illegal sentence and that due process and double jeopardy are not violated by resentencing Petitioner. In any event, Respondent argues, Petitioner waived these arguments by not objecting to resentencing. Petitioner submitted a Reply dated August 18, 2008.
Respondent argues that Penal Law §70.45 required the imposition of a period of PRS in addition to the six-year determinate sentence; because the Court failed to impose a term of PRS, the sentence was illegal and the Court correctly resentenced Petitioner according to the mandates of the Court of Appeals decisions of Sparber, supra and Matter of Garner v. NYS Dep't of Corr. Services., 10 NY3d 358 (2008).*fn3 Petitioner does not contest that a period of PRS should have been imposed originally; rather, he argues that since it was not imposed at sentence, the sentence cannot, over a full year after the completion of the imposed sentence, be modified.
Respondent's interpretation of and reliance on Sparber and Garner is incorrect. In Sparber, the Court of Appeals remanded for resentencing because each of the five defendants was still serving his sentence and was challenging his sentence on direct appeal. The defendant in Garner had completed his imposed sentence; therefore, the Court of Appeals vacated the administratively imposed PRS but in contrast to Sparber did not remand for resentencing. The Court of Appeals did, however, comment on the issue of resentencing: "Our holding here is without prejudice to any ability that either the People or DOCS may have to seek the appropriate resentencing of a defendant in a proper forum." Garner at 363, n.4. Respondent maintains that this conditional language is a mandate from the Court of Appeals for resentencing. This Court disagrees. All that is apparent from the conditional language is that the Court of Appeals was not prepared to make a prospective ruling on an issue not before it.*fn4 Respondent's reliance on People v. DeValle, 94 NY2d 870 (2000) is equally misplaced. While in DeValle, the Court of Appeals held that a court has inherent power to correct an illegal sentence, the defendant in DeValle had just begun serving his sentence when the judge corrected it to conform to the mandates of the Criminal Procedure Law.
The instant matter is parallel to the defendant in Garner and unlike the defendants in Sparber and DeValle: Petitioner completed serving his sentence; he waived his right to appeal his sentence and, in any event, the time to appeal his case expired.*fn5 This Court then vacated the illegally imposed period of PRS. Having completed his imposed sentence, Petitioner was released back into society. The addition of a two-and-a-half period of PRS would substantially increase Petitioner's sentence and subject him to the possibility of returning to prison if Division found a PRS violation. As the Court of Appeals stated in Garner: "PRS represents a significant punishment component that restricts an individual's liberty." citing People v. Catu, 4 NY3d 242, 245 (2005). This Court finds, therefore, that it exceeded its authority when it resentenced Petitioner to the two-and-a-half year period of PRS nunc pro tunc.*fn6
This Court also finds that it violated Petitioner's constitutional right against double jeopardy and of due process when it resentenced him to two-and-a-half years of PRS. The Double Jeopardy Clause of the U.S. Constitution protects against second prosecutions and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717(1969). There is no bright-line period set by statute or case law that indicates when double jeopardy is violated upon resentencing. Instead, the Supreme Court introduced the more amorphous concept of "expectation of finality." United States v. DiFrancesco, 449 U.S. 117, 139 (1980). In DiFrancesco, the Supreme Court held that, even though DiFrancesco had completed serving the imposed sentence, double jeopardy was not violated because a federal statute gave the government the right to appeal; therefore, because the government still retained the right to appeal, the defendant could have no expectation of finality. As in DiFrancesco, Petitioner has fully served the imposed sentence. In contrast, however, in the case at bar, the time period for appealing expired long ago even ...