People v Viehdeffer

People v Viehdeffer 2010 NY Slip Op 05937 [75 AD3d 1112] July 2, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 1, 2010

The People of the State of New York, Respondent, v Aaron J. Viehdeffer, Appellant.

—[*1] Gary A. Horton, Public Defender, Batavia (Bridget L. Field of counsel), for defendant-appellant.

Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), for respondent.

Appeal from a resentence of the Genesee County Court (Robert C. Noonan, J.), rendered December 10, 2008. Defendant was resentenced upon his conviction of burglary in the second degree.

It is hereby ordered that the resentence so appealed from is unanimously reversed on the law, the original sentence is reinstated and the matter is remitted to Genesee County Court for proceedings pursuant to CPL 470.45.

Memorandum: Defendant appeals from a resentence pursuant to which, following a hearing, County Court sentenced him to a five-year period of postrelease supervision. We agree with defendant that the court erred in imposing a period of postrelease supervision after he had been conditionally released from the previously imposed determinate sentence of incarceration. Inasmuch as he had been released from custody, defendant had "a legitimate expectation that the sentence, although illegal under the Penal Law, is final[,] and the Double Jeopardy Clause prevents a court from modifying the sentence to include a period of postrelease supervision" (People v Williams, 14 NY3d 198, 219-220 [2010]; see People v Appleby, 71 AD3d 1545 [2010]). Present—Centra, J.P., Peradotto, Carni, Pine and Gorski, JJ.