People v Harper

People v Harper 2011 NY Slip Op 05407 Decided on June 23, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 23, 2011
Mazzarelli, J.P., Sweeny, Catterson, DeGrasse, Manzanet-Daniels, JJ.
3274 6160/00

[*1]The People of the State of New York, Respondent,

v

Yolanda Harper, Defendant-Appellant.



 
Robert S. Dean, Center for Appellate Litigation, New York
(Mark W. Zeno of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patricia
Curran of counsel), for respondent.

Judgment of resentence, Supreme Court, New York County (James A. Yates, J.), rendered February 5, 2009, as amended February 13, 2009, resentencing defendant to a term of 10 years, with 2½ 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 her prison term at the time of the resentencing proceeding, and therefore had no reasonable expectation of finality in her illegal sentence (see People v Lingle, _NY3d _, 2011 NY Slip Op 03308 [2011]). Additionally, the Lingle court rejected due process arguments such as those raised by the defendant herein (id.).

Defendant, who does not seek to withdraw her plea, argues that she was entitled to specific performance of her original plea bargain, which made no mention of PRS (cf. People v Catu, 4 NY3d 242 [2005]). A similar claim was rejected in People v Jordan (16 NY3d 845 [2011]).

Defendant's remaining challenges to her resentencing are similar to arguments that were rejected in People v Williams (14 NY3d 198 [2010], cert denied, _ US _, 131 S Ct 125 [2010]; see also Lingle, 2011 NY Slip Op 03308).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 23, 2011

CLERK