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Because Defendant’s Resentence to Remedy the Failure to Impose a Period of Post-Release Supervision Was On Appeal, Defendant Had Not Acquired a Legitimate Expectation of Finality in His Sentence such that the Double Jeopardy Clause Was Implicated

In a full-fledged opinion by Judge Lippman, the Court of Appeals determined, under the facts, the imposition of a period of post-release supervision [PRS] after defendant completed his sentence (which was illegal because it did not include a period of post-release supervision) did not violate the Double Jeopardy clause.  Because the resentence was being appealed, the defendant had not yet “acquired a legitimate expectation of finality in his sentence:”

Defendant … moved to vacate his conviction under Criminal Procedure Law (CPL) 440.10. Supreme Court denied the motion to vacate the conviction. The court nevertheless noted that defendant's sentence was illegal because it did not include the mandatory term of PRS … and ordered that defendant be resentenced. Defendant was conditionally released in May 2008. One month later, Supreme Court resentenced defendant to the original concurrent terms of imprisonment, as well as a five-year term of PRS. In October 2009, the maximum term of his prison sentence passed.   * * *

The protection against multiple punishments protects defendants from having their sentences increased once they have acquired “legitimate expectations of finality” therein (Williams, 14 NY3d at 214). We explained in Williams that a defendant may acquire a legitimate expectation of finality in an illegal sentence only once “the direct appeal has been completed (or the time to appeal has expired)” and the sentence has been served (id. at 217).

In Velez [19 NY3d 642] , we addressed whether a defendant acquired a legitimate expectation of finality in an illegal sentence where a resentencing proceeding had been instituted but the term of PRS had not yet been imposed prior to the expiration of the sentence. We held that the defendant … acquired a legitimate expectation of finality (19 NY3d at 650). In this case, defendant has served his sentence, but the direct appeal of that sentence is not over; it presently is before us. Consequently, defendant has not acquired a legitimate expectation of finality in his sentence.  People v Cintron, 35, CtApp 3-27-14

 

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