[972 N.Y.S.2d 183]Lynn W.L. Fahey, Appellate Advocates, New York City (Paul Skip Laisure of counsel), for appellant in the first above-entitled action.
Lynn W.L. Fahey, Appellate Advocates, New York City (Paul Skip Laisure of counsel), for appellant in the second above-entitled action.
Richard A. Brown, District Attorney, Kew Gardens (Anastasia Spanakos and John M. Castellano of counsel), for respondent in the first and second above-entitled actions.
[995 N.E.2d 145] In these unrelated cases, each defendant claims tat the imposition of mandatory postrelease supervision (PRS) to his determinate sentence at resentencing violates the Fifth Amendment Double Jeopardy Clause of the federal constitution. Defendants claim that they have completed their determinate sentences, therefore imposition of PRS violates the prohibition against multiple punishments. We conclude that the respective resentences do not constitute violations of the Double Jeopardy Clause because defendants do not have a legitimate expectation of finality until they have completed their aggregated sentences under Penal Law § 70.30.
In both these cases, defendants were resentenced because the sentencing court failed to impose PRS as part of the original sentence ( see People v. Sparber, 10 N.Y.3d 457, 469-470, 859 N.Y.S.2d 582, 889 N.E.2d 459  [holding that a judge must pronounce a defendant's PRS sentence in open court and that a court's failure to impose PRS as part of the original sentence requires resentencing of the defendant to correct the error] ). Defendant Christopher Brinson
was arrested on December 8, 1998, and sentenced on July 14, 2000 to a determinate term of 10 years' imprisonment for robbery in the second degree (Penal Law § 160.10 ), an indeterminate term of 3 to 6 years' imprisonment for robbery in the third degree (Penal Law § 160.05), and an indeterminate term of 2 to 4 years' imprisonment for grand larceny in the fourth degree (Penal Law § 155.30 ). The court ordered the indeterminate counts to run concurrent with each other but consecutive to the determinate count. On April 28, 2010, approximately 11 years and four months after his incarceration following his arrest, [995 N.E.2d 146] [972 N.Y.S.2d 184] Supreme Court resentenced defendant, imposing upon him five years' PRS nunc pro tunc on the determinate count.
Defendant Lawrence Blankymsee was sentenced, on May 20, 2004, as a second felony offender, to seven concurrent prison terms consisting of determinate sentences of five years on two loaded firearm possession, counts (Penal Law § 265.02 ), indeterminate sentences of 3 to 6 years on other weapons possession counts (Penal Law § 265.02 ), indeterminate sentences of 8 to 16 years on two felony controlled substance possession counts (Penal Law § 220.16 ), and a definite sentence of one year on a misdemeanor drug possession count (Penal Law § 220.03). Six years and five months later, on October 20, 2010, Supreme Court resentenced defendant and imposed five years' PRS on the two counts of criminal possession in the third degree involving the unlawful possession of loaded firearms, for which he had received determinate sentences.
The Appellate Division unanimously affirmed the resentences in separate appeals, concluding that defendants did not have a legitimate expectation of finality in their respective determinate sentences because they had not completed their properly aggregated sentences prior to resentencing ( People v. Brinson, 90 A.D.3d 670, 933 N.Y.S.2d 728 [2d Dept.2011]; People v. Blankymsee, 92 A.D.3d 890, 938 N.Y.S.2d 816 [2d Dept.2012] ). A Judge of this Court granted leave to appeal in both cases.
The Fifth Amendment's Double Jeopardy Clause prohibits multiple punishments for the same crime ( see United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 66 L.Ed.2d 328 ; People v. Biggs, 1 N.Y.3d 225, 228-229, 771 N.Y.S.2d 49, 803 N.E.2d 370  ). This prohibition " prevents a sentence from being increased once the defendant has a legitimate expectation in the finality of the sentence" ( People v. Williams, 14 N.Y.3d 198, 215, 899 N.Y.S.2d 76, 925 N.E.2d 878 , citing DiFrancesco, 449 U.S. at 135-136, 101 S.Ct. 426). However, " defendants are ‘ presumed to be aware that a determinate prison sentence without a term of PRS is illegal’ " ( People v. Lingle, 16 N.Y.3d 621, 630, 926 N.Y.S.2d 4, 949 N.E.2d 952 , quoting Williams, 14 N.Y.3d at 217, ...