        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

961
KA 12-00992
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

HECTOR ALVARADO, DEFENDANT-APPELLANT.


REBECCA CURRIER, AUBURN, FOR DEFENDANT-APPELLANT.

HECTOR ALVARADO, DEFENDANT-APPELLANT PRO SE.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered May 3, 2011. Defendant was resentenced upon
his conviction of assault in the second degree.

     It is hereby ORDERED that said appeal is unanimously dismissed.

     Memorandum: Defendant appeals from a resentence with respect to
his conviction in 2001 of, inter alia, assault in the second degree
(Penal Law § 120.05 [3]). Defendant was incarcerated at the time of
the conviction, and County Court (Contiguglia, A.J.) originally
directed that the sentences imposed on the assault count and another
count were to run concurrently to each other and consecutively to the
sentence defendant was serving. At the resentencing, County Court
(Fandrich, A.J.), with the consent of the People, imposed the same
sentence that was imposed in 2001 (see Corrections Law § 601-d [3]),
without postrelease supervision. As a preliminary matter, we note
that defendant raises contentions in his pro se supplemental brief
related to the underlying conviction. Inasmuch as defendant failed to
appeal from the judgment of conviction and the resentence occurred
more than 30 days after the original sentence, the appeal is from the
resentence only (see CPL 450.30 [3]). Thus, defendant’s contentions
in his pro se supplemental brief are not properly before us (see
People v Pelczynski, 43 AD3d 1279, 1279; People v Coble, 17 AD3d 1165,
1165, lv denied 5 NY3d 787).

     The People correctly concede that defendant had completed his
sentence prior to the date of resentencing. We therefore agree with
defendant that the court lacked authority to resentence him (see
People v Williams, 14 NY3d 198, 217, cert denied ___ US ___, 131 S Ct
125), and that the resentencing was in violation of the constitutional
prohibition against double jeopardy (see generally People v Velez, 19
                                 -2-                          961
                                                        KA 12-00992

NY3d 642, 649). Although no period of postrelease supervision (PRS)
was added (cf. id.; Williams, 14 NY3d at 209), we nevertheless
conclude that, because the court could have imposed a period of PRS
following the completion of defendant’s sentence, he was improperly
subjected to “ ‘multiple punishments for the same offense in
successive proceedings’ ” (People v Gause, 19 NY3d 390, 394).
However, because “we cannot afford defendant any meaningful relief,”
we dismiss the appeal as moot (People v Facen, 67 AD3d 1478, 1479, lv
denied 14 NY3d 800, reconsideration denied 15 NY3d 749; see People v
Jackson, 89 AD3d 1122, 1123, lv denied 19 NY3d 1103).




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
