People v Gillard

People v Gillard 2015 NY Slip Op 02225 Decided on March 20, 2015 Appellate Division, Fourth 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 20, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.
4 KA 14-00465

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

JERRY GILLARD, DEFENDANT-APPELLANT.

Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Onondaga County Court (Thomas J. Miller, J.), dated February 25, 2014. The order denied defendant's motion pursuant to CPL 440.10 and 440.20 to, among other things, vacate the judgment convicting defendant of attempted criminal possession of a weapon in the third degree.

JERRY GILLARD, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.

It is hereby ORDERED that the order so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from an order denying his motion pursuant to CPL 440.10 and 440.20 seeking to vacate the judgment convicting him, upon his plea of guilty, of attempted criminal possession of a weapon in the third degree (Penal Law §§ 110.00, 265.02 [former (4)]) or to set aside the sentence imposed thereon. County Court properly concluded that defendant should have been sentenced as a second felony offender to a period of five years' postrelease supervision rather than a period of one and a half years (see People v Hawkins, 45 AD3d 989, 992, lv denied 9 NY3d 1034; People v Jordan, 21 AD3d 907, 908, lv denied 5 NY3d 883). The court properly declined to vacate the judgment or set aside the sentence, however, inasmuch as defendant completed serving his sentence of incarceration and postrelease supervision and the Double Jeopardy clause precluded a resentence adding to the period of postrelease supervision (see People v Williams, 14 NY3d 198, 217, cert denied ___US ___, 131 S Ct 125). Further, inasmuch as defendant is subject to "lifetime parole supervision, the imposition of postrelease supervision following his imprisonment for [attempted criminal possession of a weapon] is duplicative and does not deprive him of the benefit of his plea

bargain" (People v Haynes, 14 AD3d 789, 791, lv denied 4 NY3d 831).

Entered: March 20, 2015

Frances E. Cafarell

Clerk of the Court