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The People of the State of v. Robert Cass

State of New York Supreme Court, Appellate Division Third Judicial Department


January 5, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ROBERT CASS, APPELLANT.

The opinion of the court was delivered by: Spain, J.P.

MEMORANDUM AND ORDER

Calendar Date: November 15, 2011

Before: Spain, J.P., Lahtinen, Malone Jr., Stein and Egan Jr., JJ.

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered January 9, 2009, which resentenced defendant following his conviction of the crime of sexual abuse in the first degree (two counts).

Defendant pleaded guilty to two counts of sexual abuse in the first degree and was sentenced in accordance with the plea agreement to consecutive prison terms of four years. The judgment of conviction was affirmed upon appeal to this Court (301 AD2d 681 [2003]). Following defendant's release from prison, County Court was notified that he was a "designated person" (Correction Law § 601-d) inasmuch as the sentences imposed required, but did not include, a period of postrelease supervision (see Penal Law § 70.45). Thereafter, the court resentenced defendant to include a period of postrelease supervision for each conviction. This appeal by defendant ensued.

Defendant contends, among other things, that the imposition of the postrelease supervision violated the Double Jeopardy Clause of the 5th Amendment to the US Constitution. It is settled that where "a defendant is released from custody and returns to the community after serving the period of incarceration that was ordered by the sentencing court, and the time to appeal the sentence has expired or the appeal has been finally determined," a legitimate expectation of the original sentence's finality arises and double jeopardy precludes the modification of that sentence to include a period of postrelease supervision (People v Williams, 14 NY3d 198, 219-220 [2010], cert denied 562 US ___, 131 S Ct 125 [2010]; see People v Backus, 73 AD3d 1342, 1343 [2010]; People v Peer, 73 AD3d 1341, 1342 [2010]; accord People v Embrey, 75 AD3d 661, 662 [2010]; cf. People v Lingle, 16 NY3d 621, 630-631 [2011]). Inasmuch as defendant's direct appeal is final and he has been released from custody, we find (and the People concede) that the period of postrelease supervision imposed upon resentencing must be vacated and the original sentence reinstated. In light of this determination, we do not address defendant's remaining contentions.

Lahtinen, Malone Jr., Stein and Egan Jr., JJ., concur.

ORDERED that the judgment is modified, on the law, by vacating that part of the resentence as imposed a period of postrelease supervision, and, as so modified, affirmed.

Robert D. Mayberger Clerk of the Court

ENTER:

20120105

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