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People v. Hernandez

Supreme Court of New York, Second Department

October 16, 2013

The People of the State of New York, respondent,
v.
Jose Hernandez, appellant. (Ind. No. 2327/99)

Lynn W. L. Fahey, New York, N.Y. (Ellen Fried of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Nancy Fitzpatrick Talcott of counsel), for respondent.

PETER B. SKELOS, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, SYLVIA O. HINDS-RADIX, JJ.

DECISION & ORDER

Appeal by the defendant from a resentence of the Supreme Court, Queens County (Modica, J.), imposed February 1, 2012, upon his conviction of assault in the first degree (two counts), the resentence being a period of postrelease supervision in addition to the determinate term of imprisonment previously imposed on August 25, 2000.

ORDERED that the resentence is affirmed.

Inasmuch as the defendant had not yet completed serving his originally imposed sentence of imprisonment when he was resentenced, his resentencing to a term including the statutorily required period of postrelease supervision did not violate the double jeopardy and due process clauses of the United States Constitution (see People v Lingle, 16 N.Y.3d 621, 630-632; People v Jiggetts, 108 A.D.3d 641; People v Wheeler, 108 A.D.3d 646; People v Dawkins, 87 A.D.3d 550; People v Harris, 86 A.D.3d 543).

Further, the resentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).

SKELOS, J.P., HALL, COHEN and HINDS-RADIX, JJ., concur.


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