The People of the State of New York, Respondent, v. Francisco Camacho, Defendant–Appellant.

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

The People of the State of New York, Respondent, v. Francisco Camacho, Defendant–Appellant.

5416

Decided: June 23, 2011

Saxe, J.P., Sweeny, Catterson, Freedman, Manzanet–Daniels, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Matthew I. Fleischman of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Cynthia A. Carlson of counsel), for respondent.

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Judgment of resentence, Supreme Court, Bronx County (John P. Collins, J.), rendered July 8, 2010, resentencing defendant to an aggregate term of 9 years, with 3 years' postrelease supervision, unanimously reversed, on the law, the resentence vacated and the original sentence without postrelease supervision reinstated.

Defendant is entitled to relief under People v. Williams (14 NY3d 198 [2010] ), which invalidates the imposition of postrelease supervision upon resentencing of defendants who have been released after completing their original sentences.   Only those defendants who are still in custody or are on conditional release may be thus resentenced (see also People v. Lingle, 16NY3d621, 2011 N.Y. Slip Op 03308 [April 28, 2011] ).

The resentencing proceeding was commenced shortly before defendant's scheduled release from custody.   While the proceeding was pending, he was released after serving his full sentence;  no conditional release was involved.   The People assert that defendant was primarily responsible for the fact that he was resentenced after completing his original sentence.

However, the record does not support that claim (see People v. Deuras, 82 AD3d 528 [2011] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK