THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. AARON VIEHDEFFER DEFENDANT APPELLANT (2010)

Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. AARON J. VIEHDEFFER, DEFENDANT-APPELLANT.

KA 09-00934

Decided: July 02, 2010

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, PINE, AND GORSKI, JJ.

GARY A. HORTON, PUBLIC DEFENDER, BATAVIA (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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 Genesee 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. We agree with defendant that the court erred in imposing a period of postrelease supervision after he 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, is 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; see People v. Appleby, 71 AD3d 1545).

Patricia L. Morgan

Clerk of the Court

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