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

818
KA 09-02177
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

JOHN KELLY, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a resentence of the Onondaga County Court (Anthony F.
Aloi, J.), rendered October 1, 2009. Defendant was resentenced upon
his conviction of assault 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 Onondaga 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. As the People correctly concede,
the court erred in imposing a period of postrelease supervision after
defendant 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, [was] 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, cert denied ___ US ___, 131 S Ct 125;
see People v Viehdeffer, 75 AD3d 1112, 1113).




Entered:   June 29, 2012                           Frances E. Cafarell
                                                   Clerk of the Court
