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PEOPLE v. DePERNO (2013)

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The PEOPLE of the State of New York, Respondent, v. Daniel W. DePERNO, Appellant.

Decided: November 21, 2013

Before: STEIN, J.P., McCARTHY, SPAIN and GARRY, JJ. Mitch Kessler, Cohoes, for appellant. Mark D. Suben, District Attorney, Cortland (Christine M.R. Ferraro of counsel), for respondent.

Appeal from a judgment of the County Court of Cortland County (Campbell, J.), rendered April 26, 2012, which resentenced defendant following his conviction of the crimes of criminal sexual act in the second degree, rape in the second degree and rape in the third degree.

In 2010, defendant pleaded guilty to criminal sexual act in the second degree, rape in the second degree and rape in the third degree in satisfaction of a 31–count indictment. In accordance with his plea agreement, County Court sentenced defendant to an aggregate prison term of 10 years followed by 10 years of postrelease supervision. On appeal, this Court determined that the imposed sentences were illegal because, at the time that defendant committed the crimes, the relevant statutes provided for indeterminate sentences, rather than determinate sentences, and did not authorize postrelease supervision (92 AD3d 1089, 1090 [2012] ). Upon remittal, the People requested a resentence to an aggregate prison term of 6 to 18 years and indicated that if defendant did not accept that sentence, they would exercise their option to withdraw from the plea agreement. Defendant declined to withdraw his plea, but objected to the People's recommendation. County Court resentenced him to an aggregate prison term of 6 to 18 years. Defendant appeals.

County Court violated double jeopardy principles when it imposed on defendant an aggregate sentence with a maximum of more than 10 years in prison. “[T]he key to double jeopardy analysis of a sentence increase is whether the defendant had a legitimate expectation in the finality of his [or her] original sentence” (Stewart v. Scully, 925 F.2d 58, 63 [2d Cir1991]; see People v.. Williams, 87 N.Y.2d 1014, 1015 [1996] ). A court violates double jeopardy principles if it subjects a defendant to a greater maximum sentence upon resentencing after the original agreed-upon sentence has been determined to be illegal (see Stewart v. Scully, 925 F.2d at 63). At the time of resentencing, defendant had served two years of his 10–year prison sentence (compare id. at 64 [the defendant had legitimate expectation of finality where he had served three years of 20–year maximum] ).1 As defendant had a reasonable expectation of finality in the maximum term of his prison sentence, namely that he would serve no more than 10 years in prison, imposing a maximum prison term greater than 10 years would run afoul of the double jeopardy clause (see People v. Campanella, 297 A.D.2d 642, 642–643 [2002]; People v. Trimm, 252 A.D.2d 673, 675 [1998], lv denied 92 N.Y.2d 931 [1998]; People v. Gilchrist, 231 A.D.2d 424, 424 [1996], lv denied 89 N.Y.2d 864 [1996]; see also People v. White, 292 A.D.2d 158, 158–159 [2002] ). Thus, we modify the resentence to an aggregate maximum of 10 years in prison.

ORDERED that the judgment is modified, on the law, by reducing the sentences imposed on counts 13, 15 and 16 of the indictment to 1 to 3 years, 11/313 to 4 years and 1 to 3 years, respectively, to be served consecutively, and, as so modified, affirmed.

STEIN, J.P., SPAIN and GARRY, JJ., concur.


1.  The choice for defendant to accede to the People's recommended sentence or withdraw his plea is somewhat illusory here, considering that he would be up for trial on 31 counts and had already served two years of his sentence.


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