People v Pullum

People v Pullum 2012 NY Slip Op 02328 Decided on March 27, 2012 Appellate Division, Second 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 March 27, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
PETER B. SKELOS
MARK C. DILLON
DANIEL D. ANGIOLILLO, JJ.
2010-06883
(Ind. No. 5911/00)

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

v

Edward Pullum, respondent.




Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard
Joblove and Morgan J. Dennehy of counsel), for appellant.
Steven Banks, New York, N.Y. (Kristina Schwarz of counsel),
for respondent.


DECISION & ORDER

Appeal by the People from an order of the Supreme Court, Kings County (Brennan, J.), dated May 5, 2010, which, upon the defendant's conviction of attempted murder in the second degree, upon his plea of guilty, granted the defendant's motion pursuant to CPL 440.20 and Penal Law § 70.85 to vacate a resentence of the same court imposed May 29, 2009, which imposed a period of postrelease supervision in addition to the determinate term of imprisonment previously imposed on May 22, 2001.

ORDERED that the order is reversed, on the law, and the motion is denied.

Since the defendant had not yet completed his originally imposed sentence of imprisonment when he was resentenced, the resentencing 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; People v Edwards, 89 AD3d 1034; People v Douglas, 89 AD3d 959; People v Harris, 89 AD3d 863; People v Algarin, 89 AD3d 859, lv denied 18 NY3d 881; People v Dawkins, 87 AD3d 550). Accordingly, the Supreme Court erred in granting the defendant's motion to vacate the resentence.
RIVERA, J.P., SKELOS, DILLON and ANGIOLILLO, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court