PEOPLE v. WHITFIED (2000)

Judgment, Supreme Court, Bronx County (Barbara Newman, J.), rendered December 10, 1998, convicting defendant, after a jury trial, of attempted assault in the first degree (three counts), reckless endangerment in the first degree and criminal possession of a weapon in the second degree, and resentencing him to three consecutive terms of 3 to 6 years to be served concurrently with concurrent terms of 2 1/313 to 7 years and 7 1/212 to 15 years, unanimously affirmed.

The verdict was not against the weight of the evidence.   There is no basis upon which to disturb the jury's determinations concerning credibility and identification.

Defendant, who originally received an aggregate sentence of 7 to 21 years, which was illegal in that the minimum term was required to be one-half the maximum, was properly resentenced to an aggregate sentence of 9 to 18 years.   Defendant argues that any unnecessary increase in the sentence, including the minimum term, would violate double jeopardy principles, so that the court was obligated to correct the illegality by imposing a sentence no greater than 7 to 14 years.   We reject this argument because defendant had no legitimate expectation of finality in the original illegal sentence, and the corrected sentence fell within the range initially imposed by the court (see, People v. DeValle, 94 N.Y.2d 870, 704 N.Y.S.2d 924, 726 N.E.2d 476;  People v. Williams, 87 N.Y.2d 1014, 643 N.Y.S.2d 469, 666 N.E.2d 174).   Defendant's expectation of finality is further undermined by the fact that the resentencing took place less than one year after the original sentencing, which was within the time available to the People to move for vacatur pursuant to CPL 440.40 (compare, Williams v. Travis [denying habeas corpus relief to same defendant as in People v. Williams, supra], 2d Cir., 143 F.3d 98, with Stewart v. Scully, 2d Cir., 925 F.2d 58, see also, People v. Melendez, 254 A.D.2d 74, 681 N.Y.S.2d 485, lv. denied 93 N.Y.2d 855, 688 N.Y.S.2d 503, 710 N.E.2d 1102).   We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.