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The People of the State of New York, Respondent v. John Kelly

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


June 29, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JOHN KELLY, DEFENDANT-APPELLANT.

Appeal from a resentence of the Onondaga County Court (Anthony F. Aloi, J.), rendered October 1, 2009.

People v Kelly

Appellate Division, Fourth Department

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 Official Reports.

Decided on June 29, 2012

PRESENT: SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.

Defendant was resentenced upon his conviction of assault in the second degree.

It is hereby ORDERED that the resentence so appealed from is unanimously reversed on the law, the original sentence is reinstated and the matter is remitted to Onondaga County Court for proceedings pursuant to CPL 470.45.

Memorandum: Defendant appeals from a resentence pursuant to which, following a hearing, County Court sentenced him to a five-year period of postrelease supervision. As the People correctly concede, the court erred in imposing a period of postrelease supervision after defendant had been conditionally released from the previously imposed determinate sentence of incarceration. Inasmuch as he had been released from custody, defendant had "a legitimate expectation that the sentence, although illegal under the Penal Law, [was] final and the Double Jeopardy Clause prevents a court from modifying the sentence to include a period of postrelease supervision" (People v Williams, 14 NY3d 198, 219-220, cert denied ___ US ___, 131 S Ct 125; see People v Viehdeffer, 75 AD3d 1112, 1113).

Entered: June 29, 2012

Frances E. Cafarell Clerk of the Court

20120629

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