Post-Release Modification of Sentence Constitutes Double Jeopardy

People v. Peer, 5-20-10
(Kavanaugh, J.)

People v. Backus, 5-20-10
(Garry, J.)

In Peer, the defendant, pleaded guilty to a number of sex offenses and was sentenced to an aggregate term of seven years in prison. The County Court neglected to include a period of post-release supervision in the sentence. Upon the defendant's release from prison, he was identified as a "designated person" pursuant to Correction Law sec 601-d, was presented before County Court and was resentenced with the addition of five years post-release supervision.

In Backus, the defendant, was convicted of robbery in teh second degree (2 counts) and grand larceny in the fourth degree and sentenced to an aggregate 10 year prison term. County Court neglected to include the mandatory post-release supervision onto the defendant's sentence. The defendant's convictions were affirmed on appeal. Upon his release from prison, the defendant was identified as a "designated person" pursuant to Correction Law sec. 601-d and the defendant was resentenced with the addition of five years post-release supervision.

On appeal, the Third Department held that where a defendant is released from prison and the time to appeal has expired or the appeal was finally decided, he has a "legitimate expectation that the original sentence is final." This renders any attempt to add a term of post-release supervision a violation of the prohibition of double jeopardy. The Court also noted that preservation was not a bar on account of the fact that this error affects the court's jurisdiction over the defendant.