The People, etc., respondent, v. Richard Kearney, appellant.

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

The People, etc., respondent, v. Richard Kearney, appellant.

2012–04530 (Ind.No. 3451/01)

Decided: April 30, 2014

MARK C. DILLON, J.P. JOHN M. LEVENTHAL CHERYL E. CHAMBERS HECTOR D. LASALLE, JJ. Lynn W.L. Fahey, New York, N.Y. (John Gemmill of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Anastasia Spanakos of counsel;  Lorrie A. Zinno on the brief), for respondent.

Submitted—April 2, 2014


Appeal by the defendant from a resentence of the Supreme Court, Queens County (Knopf, J.), imposed April 18, 2012, upon his conviction of manslaughter in the first degree and criminal possession of a weapon in the fourth degree, after a nonjury trial, the resentence being a period of postrelease supervision in addition to the determinate term of imprisonment previously imposed by the same court (Hanophy, J.) on September 10, 2003.

ORDERED that the resentence is affirmed.

Since the defendant was still serving his original sentence when the resentence was imposed, the resentence to a term including the statutorily required period of postrelease supervision did not subject him to double jeopardy or violate his right to due process of law (see People v. Lingle, 16 NY3d 621, 630–633;  People v. Thompson, 92 AD3d 812;  People v. Harris, 86 AD3d 543, 543–544).

The period of postrelease supervision imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).



Aprilanne Agostino

Clerk of the Court

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