People of the State of New York, Respondent, v. Herbert Long, Defendant–Appellant.

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

People of the State of New York, Respondent, v. Herbert Long, Defendant–Appellant.

3736– 3737

Decided: June 16, 2011

Tom, J.P., Saxe, Friedman, Sweeny, Abdus–Salaam, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Rither Alabre of counsel), for respondent.

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Judgment of resentence, Supreme Court, Bronx County (John P. Collins, J.), rendered August 10, 2009, resentencing defendant to consecutive terms of 25 years and 10 years, with 21/212 years' postrelease supervision, unanimously affirmed.

The resentencing proceeding held pursuant to People v. Sparber (10 NY3d 457 [2008] ) to correct an error in failing to impose a term of postrelease supervision was not barred by double jeopardy, since defendant was still serving his prison term at that time, and therefore had no reasonable expectation of finality in his illegal sentence (see People v. Lingle, _NY3d_, 2011 N.Y. Slip Op 3308 [2011] ).   Additionally, the Lingle court rejected due process arguments similar to those raised by defendant herein.

The resentencing here only involves PRS, and did not present the sentencing court with an occasion to revisit the original prison sentence.   Indeed, Lingle specifically prohibits both the resentencing court and this Court from revisiting the original, lawful sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK