The opinion of the court was delivered by: Read, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
In People v Sparber (10 NY3d 457 ), we held that defendants subject to postrelease supervision (PRS) have a statutory right under CPL 380.20 and 380.40 for a judge to pronounce the PRS sentence in their presence in open court, and that the remedy when a judge neglects to do this is resentencing to correct the error. Although the facts in these six cases vary, they share two essential features: the judges who sentenced defendants did not pronounce PRS (i.e., they committed a Sparber error), and defendants were resentenced to PRS before completion of their originally-imposed sentences of imprisonment. Specifically, defendants John Lingle, John Parisi, Dominique Murrell, John Prendergast and Manuel Rodriguez were still incarcerated when resentenced; defendant Darryl Sharlow was conditionally released from prison after having served sixsevenths of his originally-imposed sentence.
Defendants Lingle, Parisi, Murrell, Prendergast, Rodriguez and Sharlow seek upon resentencing to be relieved of their statutory obligation to serve PRS on grounds of double jeopardy and/or due process. Alternatively, defendants Lingle, Prendergast and Rodriguez maintain that resentencing courts have discretion to reconsider the propriety of their sentences as a whole (i.e., both the incarceratory and the PRS components). Defendants Lingle and Rodriguez contend, in addition, that the Appellate Division possesses plenary power to modify their sentences after resentencing in the interest of justice. We reject all these arguments, and thus affirm in Lingle, Parisi, Murrell, Prendergast and Rodriguez, and reverse in Sharlow.
Defendants contend that because they served "significant" or "substantial" portions of their originally-imposed sentences before resentencing, they acquired a legitimate expectation of finality, and, as a result, their cases are not comparable to those where the Double Jeopardy Clause did not bar a greater sentence (see, e.g., Bozza v United States, 330 US 160  [defendant resentenced five hours after original sentence imposed]; Williams v Travis, 143 F3d 98 [2d Cir 1998] [one week]; People v Williams, 87 NY2d 1014  [one week]). In order to avoid a double jeopardy violation, they continue, resentencing courts may only impose PRS by reducing the incarceratory portion of their sentences such that the incarceratory and PRS components of the resentences, when added together, do not exceed the length of their originally-imposed sentences of imprisonment.
Our decision in People v Williams (14 NY3d 198 , cert denied 131 S Ct 125, 178 L Ed2d 242 ) defeats defendants' double jeopardy argument. We pointed out in Williams that defendants are "presumed to be aware that a determinate prison sentence without a term of PRS is illegal" and subject to correction, and therefore "cannot claim a legitimate expectation that the originally-imposed, improper sentence is final for all purposes" (id. at 217). Nonetheless, "there must be a temporal limitation on a court's ability to resentence a defendant since criminal courts do not have perpetual jurisdiction over all persons who were once sentenced for criminal acts" (id.). Citing federal precedent that we found to be persuasive, we held in Williams that an expectation of finality arises for purposes of double jeopardy when a defendant completes the lawful portion of an illegal sentence and exhausts any appeal taken (id. ["[T]here is a legitimate expectation of finality once the initial sentence has been served and the direct appeal has been completed (or the time to appeal has expired)"]; see also id. at 227 [characterizing majority's "holding" as requiring two conditions for a legitimate expectation of finality to "attach": "the completion of the initial sentence and the completion of the direct appeal or time to appeal"] [Pigott, J. dissenting] [internal quotation marks omitted]). The defendants in Williams and the cases decided along with it had all completed their sentences (including any discharge on conditional release) before being resentenced. By contrast, the six defendants in these cases had not yet completed their originally-imposed sentences of imprisonment when they were resentenced to add PRS.*fn1
To counter Williams, defendants highlight the Second Circuit's decision in Stewart v Scully (925 F2d 58 [2d Cir 1991]). Focusing on the "substantial portion" of the originally-imposed indeterminate sentence already served, the court in Stewart decided that the defendant possessed a "legitimate expectation in the finality of his sentence, thus violating the protection against multiple punishments guaranteed by the double jeopardy clause." But Stewart pleaded guilty in exchange for amaximum sentencing exposure of 20 years. Upon subsequently learning that the minimum sentence had to be one-third (as opposed to one-half) the maximum, the sentencing court increased Stewart's maximum sentence to 24 years. By contrast, these defendants were not caught unaware when a sentencing agreement was changed: defendants Lingle, Parisi, Murrell, Prendergast and Rodriguez were sentenced after trials; defendant Sharlow was "sentenced, as promised, to seven years" (dissenting op at 1 [emphasis added]).
Importantly, defendants' suggested rule -- that resentencing to PRS should be precluded when a "significant" or "substantial" portion of the originally-imposed sentence of imprisonment has been served -- supplies no meaningful standard by which to measure a reasonable expectation of finality. Given the thousands of resentencings -- past and future -- brought about by Sparber errors, our rule in Williams, by contrast, promotes clarity, certainty and fairness.
Finally, defendants offer no principled basis for us to go beyond our recent decision in Williams and interpret the State Constitution's Double Jeopardy Clause more broadly than its federal counterpart, particularly in light of our other recent decision in Matter of Suarez v Byrne (10 NY3d 523, 534 ). True, the Legislature has enacted certain statutes affording broader double jeopardy protection than the Federal Constitution requires, but these laws have nothing to do with sentencing.
Indeed, after we handed down Sparber the Legislature promptly adopted legislation to allow resentencing as many defendants as possible to sentences that include PRS (see L 2008, ch 141).
Defendants also argue that substantive due process bars their resentencing to PRS. To support a due process claim, they rely principally on the decisions of the First and Fourth Circuits in Breest v Helgemoe (579 F2d 95 [1st Cir 1978], United States v Lundien (769 F2d 981 [4th Cir 1985]), and DeWitt v Ventetoulo (6 F3d 32 [1st Cir 1993]). These decisions generally apply a multi-factor test to determine when a defendant's expectation that his sentence will remain unchanged has "crystallized" such that resentencing would offend substantive due process (see Lundien, 769 F2d at 987). But subsequent decisions by the very same courts have largely abandoned the multi-factor test in favor of a "shocks the conscience" standard (see Gonzalez-Fuentes v Molina, 607 F3d 864, 882 [1st Cir 2010] [applying the "shock the conscience" standard to evaluate substantive due process claims]; Espinoza v Sabol, 558 F3d 83, 87 [1st Cir 2009] [describing DeWitt as an "extreme case" that is "the very rare exception to the general rule that courts can, after sentence, revise sentences upward to correct errors"]; and Hawkins v Freeman, 195 F3d 732, 749 [4th Cir 1999] [holding that Ludien's pronouncements on due process were merely dicta and that the court had failed to engage in the "rigorous historical inquiry" mandated in Washington v Glucksberg 521 US 702, 720-721 (1997)]).
The proper substantive due process analysis thus requires a determination, first, as to whether the right at issue is so deeply rooted in this Nation's history and traditions as to be considered fundamental, and, if so, whether the government's action is "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience" (Gonzalez-Fuentes, 607 F3d at 880 [internal citation omitted]). Negligence alone is insufficient to "shock the conscience," and in successful due process challenges, there is generally an extreme lack of proportionality inspired by malice or sadism rather than carelessness or excess of zeal (id. at 881 [citations omitted]).
Even assuming a defendant possesses a fundamental right not to have an illegal sentence revised upward to correct an error, these defendants cannot establish that the government's conduct shocks the conscience. The resentencings merely imposed statutorily-required sentences. The State was not acting out of malice or sadism, but out of a desire to see that legislatively determined mandatory sentences were actually served. And the State's action was not subjectively or standardlessly directed at particular individuals; rather, it was aimed at an entire category of defendants whose sentences were improperly pronounced. In sum, judged by the "shock the conscience" standard defendants cannot make out a substantive due process violation.
While defendants fare marginally better under the DeWitt standard, they still fall short. DeWitt calls for a court to consider multiple factors, including the length of time between the mistake and its attempted correction and whether the defendant contributed to the mistake; the reasonableness of the defendant's intervening expectations; the prejudice ...