Touro Law Review Touro Law Review
Volume 30
Number 4
Annual New York State Constitutional
Issue
Article 14
November 2014
Double Jeopardy: A Resentencing Game Double Jeopardy: A Resentencing Game
Deirdre Cicciaro
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1121
DOUBLE JEOPARDY: A RESENTENCING GAME
COURT OF APPEALS OF NEW YORK
People v. Brinson
1
(decided June 26, 2013)
Two defendants, in unrelated cases, claimed that resentencing
to include the mandatory post-release supervision to their determinate
sentences violated the Double Jeopardy Clause of the Fifth Amend-
ment.
2
The defendants claimed that their multiple sentences must be
measured separately from one another.
3
Therefore, at the time of re-
sentencing, the defendants stated that they had “an expectation of fi-
nality” because they completed the determinate portion of their sen-
tences that were subject to post-release supervision.
4
The New York
Court of Appeals held that the defendants did not have a legitimate
expectation of finality until their aggregated sentences were complet-
ed and, until then, resentencing in order to correct an illegal sentence
did not violate the “Double Jeopardy Clause and the prohibition
against ‘multiple punishments.’ ”
5
I. BACKGROUND
On July 14, 2000, Christopher Brinson was sentenced to a de-
terminate term of ten years for robbery in the second degree, an inde-
terminate term of three to six years for robbery in the third degree,
and another indeterminate term of two to four years for grand larceny
in the fourth degree.
6
The court ordered that the indeterminate terms
to run concurrently, but the indeterminate terms to run consecutive to
the determinate term.
7
Brinson was incarcerated for eleven years and
1
995 N.E.2d 144 (N.Y. 2013).
2
U.S. CONST. amend. V.
3
Brinson, 995 N.E.2d at 147.
4
Id.
5
Id. at 148.
6
Id. at 145.
7
Id.
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four months when he was resentenced to include five years of post-
release supervision with his determinate sentence.
8
In 2004, Lawrence Blankymsee was sentenced to a determi-
nate term of five years on two counts of possession of a loaded fire-
arm, an indeterminate sentence of three to six years on other weapons
possession counts, an indeterminate sentence of eight to sixteen years
on two felony possessions of a controlled substance counts, and a de-
terminate sentence of one year on a misdemeanor drug possession
count.
9
Blankymsee was resentenced after six years and five months
in order to impose five years post-release supervision for his determi-
nate sentences.
10
Under New York Penal Law § 70.45, a determinate sentence
not only includes a term of imprisonment, but it also imposes a peri-
od of post-release supervision to follow.
11
The statute, which was
part of Jenna’s Law, was adopted by the New York Legislature in
1998 with the intent to “abolish parole and institute determinate terms
of imprisonment for certain felony offenses.”
12
The New York Court
of Appeals held that post-release supervision must be properly pro-
nounced by the sentencing court and a failure to do so “results in an
illegal sentence.”
13
Additionally, these illegal sentences cannot be
administratively corrected by the Department of Correctional Service
(“DOCS”) because it is outside of the department’s jurisdiction and
only a sentencing judge may impose post-release supervision.
14
In
2008, the Legislature enacted Correction Law § 601-d to be used as a
device for the court to consider resentencing defendants who were
serving determinate sentences but did not receive post-release super-
vision in their original sentence.
15
Additionally, this law was enacted
to allow the DOCS to notify sentencing courts that post-release su-
pervision was not included in the original sentence and that the de-
fendant should be resentenced to include post-release supervision.
16
In People v. Brinson, Brinson and Blankymsee challenged the
8
995 N.E.2d at 145-46.
9
Id. at 146.
10
Id.
11
N.Y. PENAL LAW § 70.45 (McKinney 2011).
12
People v. Williams, 925 N.E.2d 878, 881 (N.Y. 2010).
13
Id.
14
Matter of Garner v. New York State Dep’t of Corr. Serv., 889 N.E.2d 467, 469-70
(N.Y. 2008).
15
Williams, 925 N.E.2d at 881.
16
Id. at 884.
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constitutionality of resentencing that imposed post-release supervi-
sion to their determinate sentences as a violation of the Double Jeop-
ardy Clause of the Fifth Amendment.
17
The defendants asserted that
they had an expectation of finality because they had completed their
determinate sentences at the time of resentencing and, thus, the resen-
tencing violated the prohibition against multiple punishments.
18
The New York Court of Appeals concluded that the resen-
tencing did not violate the Double Jeopardy Clause because the de-
fendants did not have a “legitimate expectation of finality until they
completed their aggregate sentences.”
19
The court stated, the “de-
fendants were resentenced because the sentencing court failed to im-
pose P[ost] R[elease] S[upervision] as part of the original sen-
tence,”
20
and courts have an inherent authority to correct illegal
sentences.
21
Under New York Criminal Procedure Law § 440.40, a
court may set aside an illegal sentence and resentence the defend-
ant.
22
The time limit to resentence is reached when a defendant has
completed the sentence and an appeal, or the time to appeal, has run
out.
23
The court rejected the defendants’ argument that their inde-
terminate and determinate sentences must be considered separately.
24
The court found that under Penal Law § 70.30, consecutive and con-
current sentences are aggregated and “thus made into one.”
25
Addi-
tionally, the court stated, “a legitimate expectation of finality turns on
the completion of a sentence. Where multiple sentences are properly
aggregated into a single sentence, that expectation arises upon com-
pletion of that sentence.”
26
Therefore, the defendants could not have
had a legitimate expectation of finality because they were still incar-
cerated and serving their aggregate sentences.
27
The court stated that
17
Brinson, 995 N.E.2d at 144.
18
Id. at 145.
19
Id.
20
Id. (citing People v. Sparber, 889 N.E.2d 459, 464-65 (N.Y. 2008) (holding that a judge
must pronounce a defendant’s PRS sentence in open court and a court’s failure to impose
PRS as part of the original sentence requires resentencing of the defendant to correct the er-
ror)).
21
Id. at 146 (citing People v. Richardson, 799 N.E.2d 607, 610-11 (N.Y. 2003)).
22
N.Y. CRIM. PROC. § 440.40 (McKinney 1970).
23
Brinson, 995 N.E.2d at 146.
24
Id. at 147.
25
Id. (citing People v. Buss, 900 N.E.2d 964, 966 (N.Y. 2008)).
26
Id. at 148.
27
Id.
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it must presume that the defendants knew their determinate sentences
were illegal and that they understood their multiple sentences were
subject to aggregation.
28
The court discussed the case People v. Lingle.
29
In Lingle, the
defendants believed that they had a legitimate expectation of finality
because they served a “substantial” portion of their original sentenc-
es.
30
The court in Lingle rejected the defendants’ arguments and held
that defendants cannot create a legitimate expectation of finality if
they have served any time less than the entire sentence.
31
Further-
more, “defendants are ‘presumed to be aware that a determinate pris-
on sentence without a term of PRS is illegal’ and subject to correc-
tion, and therefore, ‘cannot claim a legitimate expectation that the
originally-imposed, improper sentence is final for all purposes.’ ”
32
The court in Brinson also referred to People v. Williams
33
in
its decision. The five defendants in Williams received determinate
sentences, completed their incarceration, and were released.
34
They
were then resentenced to impose terms of post-release supervision.
35
The New York Court of Appeals in Williams stated that the prohibi-
tion against multiple punishments “prevents a sentence from being
increased once the defendant has a legitimate expectation of finality
of the sentence.”
36
Moreover, there is a time limit when correcting an
illegal sentence.
37
The court stated in Williams, “there must be a
temporal limitation on a court’s ability to resentence a defendant.”
38
The court held that under the Double Jeopardy Clause, expectation of
finality occurs when the defendant completes the sentence and has
been released from custody.
39
Therefore, the court could not impose
the post-release supervision on the defendants in Williams, as they
had already been released.
40
28
Brinson, 995 N.E.2d at 147; see People v. Lingle, 949 N.E.2d 952 (N.Y. 2011) (stating
that the defendants are charged with knowledge of the law).
29
949 N.E.2d 952 (N.Y. 2011).
30
Id. at 955.
31
Id. at 956-57.
32
Id. at 955-56.
33
925 N.E.2d 878 (N.Y. 2010).
34
Id. at 886.
35
Id.
36
Id. at 888 (citing United States v. DiFrancesco, 449 U.S. 117, 135-36 (1980)).
37
Brinson, 995 N.E.2d at 146.
38
Williams, 925 N.E.2d at 890.
39
Id. at 891.
40
Id.
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II. FEDERAL APPROACH
A. Supreme Court
In United States v. Bozza,
41
the Court addressed the resentenc-
ing issue under the Double Jeopardy Clause.
42
The defendant’s con-
viction consisted of fines and imprisonment.
43
However, when the
sentence was announced, the trial judge only mentioned imprison-
ment.
44
Five hours later, the judge recalled the defendant and advised
him that the judge failed to impose mandatory fines, and he was,
therefore, including them at that time for the record.
45
The Court
stated that just because the defendant was before the judge twice in
one day for sentencing, Double Jeopardy was not invoked.
46
The de-
fendant argued that the trial court cannot correct the sentence because
it would increase his punishment.
47
The Court held that when a de-
fendant is convicted based on a verdict, the defendant should not be
able to escape punishment because the trial court committed an error
during sentencing.
48
Additionally, the Court recognized that “[t]he
Constitution does not require that sentencing should be a game in
which a wrong move by the judge means immunity for the prison-
er.”
49
The Court was only doing what the law required upon convic-
tion, and it “ ‘set aside what it had no authority to do.’ ”
50
The Court
held that the defendant was not put in jeopardy two times for the
same offense because the corrected sentence “impose[d] a valid pun-
ishment for an offense instead of an invalid punishment for that of-
fense.”
51
In 1980, United States v. DiFrancesco
52
was decided. In this
case, the defendant was sentenced to eight years for damaging federal
property and five years for conspiracy, which were to be served con-
41
330 U.S. 160 (1947).
42
Id. at 166.
43
Id. at 165.
44
Id.
45
Id.
46
Bozza, 330 U.S. at 166.
47
Id.
48
Id.
49
Id. at 166-67.
50
Id. at 167.
51
Bozza, 330 U.S. at 167.
52
449 U.S. 117 (1980).
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currently, as well as one year for unlawful storage, which was to be
served consecutively with the other sentences.
53
The defendant was
sentenced a month later to two ten year terms for racketeering; those
terms were to be served concurrently to each other, as well as with
the previous sentences, thus, resulting in only a one year addition to
the previous sentences.
54
The United States appealed, challenging the
District Court’s decision to only impose one additional year onto the
defendant’s sentence as an abuse of discretion.
55
The issue before the
Court was whether the announcement of a sentence created finality
and conclusiveness.
56
The Court found, “[D]ouble [J]eopardy con-
siderations that bar reprosecution after an acquittal do not prohibit re-
view of a sentence.”
57
The Court reasoned that the purpose of the
Double Jeopardy Clause was to prevent multiple attempts to con-
vict.
58
Additionally, the defendant had no expectation of finality until
the appeal was completed or the time to appeal had run out.
59
DiFrancesco provided that resentencing was not limited to the
facts of Bozza, where resentencing occurred on the same day as the
original sentencing, in order to correct the sentence.
60
The court in
DiFrancesco expanded Bozza by holding that “[t]he Double Jeopardy
Clause does not provide the defendant with the right to know at any
specific moment in time what the exact limit of his punishment will
turn out to be.”
61
B. Second Circuit Court of Appeals
The Second Circuit addressed the issue of expectation of fi-
nality in King v. Cuomo.
62
In King, twenty-eight defendants were
sentenced to determinate terms of imprisonment but post-release su-
pervision was not imposed during sentencing.
63
The court held that
there was no reasonable expectation of finality until the defendants
53
Id. at 122.
54
Id. at 122-23.
55
Id. at 125.
56
Id. at 132.
57
DiFrancesco, 449 U.S. at 136.
58
Id.
59
Id.
60
Id. at 137.
61
Id.
62
King v. Cuomo, 465 F. App’x 42 (2d Cir. 2012).
63
Id. at 43.
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had “completed their determinate terms and been released from cus-
tody.”
64
In Williams v. Travis,
65
the defendant pled guilty to burglary
in the second degree and he was sentenced to a three and a half to
seven year term of imprisonment.
66
However, the sentence was ille-
gal because the maximum sentence was double the minimum.
67
The
defendant claimed that the resentencing violated the Double Jeopardy
Clause.
68
The court held that the defendant did not have a legitimate
expectation of finality because his original sentence was illegal, and
thus, the defendant’s Double Jeopardy rights were not violated.
69
Furthermore, a legitimate expectation of finality could not be
achieved because there was still a right to appeal.
70
The Second Circuit also discussed the correction of illegal
sentences in United States ex rel. Ferrari v. Henderson.
71
The de-
fendant was sentenced to a five to fifteen year term of imprisonment,
as a second felony offender, and a fifteen to thirty year term for first
degree burglary.
72
The sentence was suspended on the remaining two
counts.
73
The prosecutor moved for resentencing on the grounds that
the indictment was illegal because a conviction for a felony commit-
ted with a weapon may not be suspended.
74
The defendant argued
that his resentencing violated the Double Jeopardy Clause.
75
The
court held that there was no “[D]ouble [J]eopardy problem here since
the correction of an illegal sentence by the imposition of a legal sen-
tence, even when this increases punishment, cannot be considered as
multiple punishment for the same offense.”
76
64
Id. at 45.
65
143 F.3d 98 (2d Cir. 1998).
66
Id. at 98.
67
Id.
68
Id. at 99.
69
Id.
70
Travis, 143 F.3d at 99.
71
474 F.2d 510 (2d Cir. 1973).
72
Id. at 511.
73
Id.
74
Id.
75
Id. at 513.
76
Henderson, 474 F.2d at 513.
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C. Other Circuit Court of Appeals
Although the case of United States v. Welch
77
is not binding
on the Second Circuit, it does have persuasive value. The defendant
was convicted and sentenced on four counts of possession of stolen
mail.
78
He was sentenced to four years imprisonment on count one,
to run consecutively with three year terms for counts two, three and
four which were to run concurrent with each other.
79
On appeal, the
defendant’s sentence was modified to one conviction and remanded
for resentencing.
80
Then, the defendant was resentenced to five years
imprisonment.
81
The defendant claimed that his Double Jeopardy
rights were violated when the court imposed a sentence that was larg-
er than the maximum imposed for a single count at the initial sentenc-
ing.
82
The Tenth Circuit Court of Appeals held that the defendant did
not have a legitimate expectation of finality because his original sen-
tence was illegal.
83
Therefore, the defendant’s Double Jeopardy
rights were not violated.
84
Furthermore, the Sixth Circuit Court of Appeals provides per-
suasive authority in United States v. Warner.
85
At sentencing, the
court failed to impose a special parole term that was required “when-
ever a defendant with a prior conviction is sentenced to a term of im-
prisonment.”
86
The court held that there was no Double Jeopardy
claim because an amended sentence adding a mandatory parole term
is not prohibited by the Double Jeopardy Clause.
87
D. United States District Courts
In Johnson v. New York,
88
the defendant was sentenced in
1999 to a term of five and a half to eleven years for criminal posses-
sion of a controlled substance and a one year term for resisting arrest,
77
928 F.2d 915 (10th Cir. 1991).
78
Id. at 915.
79
Id.
80
Id.
81
Id. at 916.
82
Welch, 928 F.2d at 916.
83
Id. at 917.
84
Id.
85
690 F.2d 545 (6th Cir. 1982).
86
Id. at 555.
87
Id.
88
851 F. Supp. 2d 713 (S.D.N.Y. 2012).
8
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which were to run concurrently.
89
Additionally, the defendant had a
prior undischarged sentence for a parole violation of twenty-four
months, but the court did not specify whether this sentence was to run
concurrently or consecutively.
90
The DOCS administered the de-
fendant’s 1999 sentence to run concurrently with the undischarged
sentence.
91
However, the initial calculation of the DOCS was invalid
because, according to the statute, the defendant’s 1999 sentence was
required to run consecutively with his undischarged sentence.
92
The
defendant was resentenced to serve his 1999 sentence and his undis-
charged sentence consecutively.
93
The defendant claimed that he had
a legitimate expectation of finality of his sentences running concur-
rently and the resentencing enhanced his sentence and violated his
Double Jeopardy rights.
94
The court rejected the defendant’s argu-
ment because the court did not enhance or lengthen his original sen-
tence.
95
The court held that “the Trial Court imposed the same sen-
tence that, under New York law, it was deemed to have imposed at
his original sentencing.”
96
In Warren v. Rock,
97
the defendant’s original sentence did not
include the mandatory post-release supervision.
98
When the court
discovered the error, it resentenced the defendant in order to correct
the sentence.
99
The court held that although resentencing occurred
more than seven years after the original sentencing, it did not violate
the Double Jeopardy Clause.
100
The court reasoned that “[t]he Dou-
ble Jeopardy Clause prohibits altering a previously imposed sentence
if the defendant had a legitimate expectation of finality in his original
sentence . . . but where no such expectation exists, [D]ouble
[J]eopardy does not bar a court from modifying a sentence.”
101
The
court in Warren cited Williams for the proposition that “defendants
89
Id. at 717.
90
Id.
91
Id.
92
Id.
93
Johnson, 851 F. Supp. 2d at 718.
94
Id. at 723.
95
Id.
96
Id.
97
No. 12-CV-3101, 2012 WL 2421916 (E.D.N.Y. June 27, 2012).
98
Id. at *2.
99
Id.
100
Id.
101
Id.
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who have not yet completed their imposed sentences ‘cannot acquire
a legitimate expectation of finality in a sentence which is illegal, be-
cause such a sentence remains subject to modification.’ ”
102
The
court found that the defendant did not have a legitimate expectation
of finality in his illegal original sentence because at the time of resen-
tencing when the post-release supervision was added he was still in-
carcerated.
103
“[T]hus the re-sentencing to correct the sentencing
judge’s original oversight did not violate Warren’s double jeopardy
rights.”
104
III. STATE APPROACH
The New York Constitution states in Article 1, § 6, that “[n]o
person shall be subject to be twice put in jeopardy for the same of-
fense.”
105
Until 2010, when the New York Court of Appeals decided
Williams, New York courts followed the precedent established in
DiFrancesco to resolve the issue of Double Jeopardy in resentencing
cases.
106
Since 2010, New York courts have followed the precedent
set forth in Williams to analyze expectation of finality for the purpose
of resentencing.
107
The New York Court of Appeals believed the rul-
ing in Williams “promotes clarity, certainty and fairness.”
108
A. New York Court of Appeals
In People v. Minaya,
109
the defendant agreed to a plea bargain
of an eight year sentence for attempted robbery in the first degree.
110
During sentencing, the court announced that it would follow the plea
bargain.
111
However, when the sentence was pronounced, the court
stated that the defendant’s maximum term was three years instead of
102
Warren, 2012 WL 2421916, at *2.
103
Id.
104
Id.
105
N.Y. CONST. art. I, § 6.
106
See, e.g., People v. Minaya, 429 N.E.2d 1161, 1163 (N.Y. 1981); Williams, 925 N.E.2d
at 888 (stating that the court in DiFrancesco “held that the protection against multiple pun-
ishments prevents a sentence from being increased once the defendant has a legitimate ex-
pectation of finality of the sentence.”).
107
See, e.g., Lingle, 949 N.E.2d at 955-56; Brinson, 995 N.E.2d at 146.
108
Lingle, 949 N.E.2d at 956.
109
429 N.E.2d 1161 (N.Y. 1981).
110
Id. at 1162.
111
Id.
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eight years.
112
The error was noticed when the prosecutor discussed
pleas with the codefendants.
113
At an informal hearing, the court
concluded that the pronouncement of the three year sentence was er-
roneous and stated, “the sentence is now corrected.”
114
The Appellate
Division reversed the correction on appeal and reinstated the three
year sentence.
115
The decision noted that courts have the inherent
power to correct sentences; however, the defendant’s sentence in this
case was not correctable because the “imposition of judgment enlarg-
ing the time to be served by defendant is a matter of substance not
form.”
116
The Court of Appeals reversed the Appellate Division and
stated that the court’s inherent power to correct statements or even
formal pronouncements permits the court to correct an error such as
the one in this case.
117
The court held, “there is no basis for conclud-
ing that the [D]ouble [J]eopardy [C]lause posed any impediment to
the court’s power to correct the error in the sentence.”
118
In People v. Sparber,
119
there were five defendants: Sparber,
Thomas, Lingle, Rodriguez and Ware.
120
Defendant Sparber pled
guilty to first degree assault for a fifteen year sentence and was adju-
dicated as a second violent felony offender.
121
At sentencing, the
court pronounced the determinate term of fifteen years but did not
mention the mandatory five year post-release supervision term.
122
Defendant Thomas was sentenced to a fifteen year aggregate term as
a second violent felony offender for aggravated assault on a police
officer and sex crimes involving a minor, but the court failed to pro-
nounce post-release supervision at sentencing.
123
Defendant Lingle
was sentenced to a determinate sentence of fourteen years as a second
violent felony offender for arson and an indeterminate sentence of
three and a half years to seven years to run concurrent with the de-
112
Id.
113
Id.
114
Minaya, 429 N.E.2d at 1162.
115
Id.
116
Id.
117
Id. at 1163.
118
Id. at 1164.
119
889 N.E.2d 459 (N.Y. 2008).
120
Id. at 461.
121
Id.
122
Id.
123
Id. at 462.
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terminate sentence for reckless endangerment.
124
At sentencing,
mandatory post-release supervision was not pronounced.
125
Defend-
ant Rodriguez was sentenced to the maximum of twenty five years
for gang assault in the first degree.
126
The last defendant, Ware, was
sentenced to three determinate terms of fourteen years to run concur-
rently for attempted robbery in the first degree, attempted assault in
the first degree and criminal possession of a weapon in the second
degree, for which a term of post-release supervision was not im-
posed.
127
In all five defendants’ cases, although the mandatory post-
release supervision term was not imposed at sentencing, it was in-
cluded on the court worksheet.
128
The court stated that the error of
the sentencing court “can be remedied through resentencing. Nothing
more is required.”
129
The court recognized that notes on a worksheet
recorded outside of the defendants’ presence cannot satisfy the man-
date of post-release supervision and errors can only be corrected
when the defendant was present.
130
Additionally, the court found that
“the sole remedy for a procedural error as this is to vacate the sen-
tence and remit for a resentencing hearing so that the trial judge can
make the required pronouncement.”
131
Thus, only a procedural error
is made when the required sentence is not pronounced, and it can eas-
ily be remedied by remitting the case back to the sentencing court in
order to pronounce the post-release supervision term.
132
In 2010, Williams was decided by the New York Court of
Appeals. As previously stated, the defendants completed their de-
terminate sentences, and they were released.
133
Thereafter, they were
resentenced to impose post-release supervision terms.
134
In Williams,
the New York Court of Appeals defined when a defendant has a legit-
imate expectation of finality.
135
The court held:
once a defendant is released from custody and returns
124
Sparber, 889 N.E.2d at 462-63.
125
Id. at 463.
126
Id.
127
Id.
128
Id. at 461, 463.
129
Sparber, 889 N.E.2d at 464.
130
Id. at 465.
131
Id.
132
Id. at 466.
133
Williams, 925 N.E.2d at 886.
134
Id.
135
Id. at 891.
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to the community after serving the period of incarcera-
tion that was ordered by the sentencing court . . . there
is 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 post[-]release supervi-
sion.
136
One year later, when Lingle was before of the New York
Court of Appeals, the court employed its holding in Williams to de-
termine whether the defendants had a legitimate expectation of finali-
ty.
137
The defendants served “substantial” portions of their originally
imposed sentences.
138
The court held consistently with its decision in
Williams and rejected the defendants’ argument that completing a
“substantial” portion of their sentences was a basis for a legitimate
expectation of finality.
139
B. New York Appellate Division
In People v. Smith,
140
the defendant was sentenced in 2000 to
determinate terms of eleven years for robbery in the second degree on
each of two counts, two years for grand larceny in the fourth degree,
and one year for criminal possession of stolen property in the fifth
degree, which were to run concurrently with each other.
141
Post-
release supervision was not pronounced by the sentencing court.
142
The defendant, while incarcerated in 2005, was sentenced to an inde-
terminate term of two to four years for promoting prison contraband
in the first degree, which was to run consecutively with his previous
sentences.
143
Then, in 2010, the defendant was sentenced to another
one and a half to three years for promoting prison contraband, which
was to run consecutively with his other sentences.
144
The defendant
was incarcerated for eleven years when he was resentenced for his
136
Id.
137
Lingle, 949 N.E.2d at 955-56.
138
Id. at 955.
139
Id.
140
955 N.Y.S.2d 373 (App. Div. 2d Dep’t 2012).
141
Id. at 374.
142
Id.
143
Id.
144
Id.
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robbery in the second degree convictions to include a term of post-
release supervision.
145
The court held that the resentencing did not
violate the Double Jeopardy Clause.
146
It used the reasoning from the
court in Williams stating “[s]ince the defendant was still serving this
single, combined sentence at the time of the resentencing, and had
not yet been released from prison, he did not have a legitimate expec-
tation of finality.”
147
Furthermore, in People v. Scott,
148
the defendant was sen-
tenced to determinate terms of ten years for attempted rape in the first
degree and seven years for assault in the second degree, which were
to run concurrently.
149
However, the required post-release supervi-
sion was not imposed by the sentencing court.
150
The court held that,
in accordance with the decision in Williams, resentencing the defend-
ant to include the post-release supervision term did not put him in
Double Jeopardy because he had not been released from incarceration
of his original sentence.
151
C. New York Supreme Court
The Supreme Court of New York, Queens County faced the
issue of resentencing a defendant in order to impose the mandatory
post-release supervision to the original sentence in People v. Wells.
152
The defendant was a second felony offender who was sentenced to
three determinate terms of ten years for one count of robbery in the
first degree and two counts of robbery in the second degree, which
were to run concurrently.
153
Additionally, the defendant was sen-
tenced to indeterminate terms of three and a half to seven years for
criminal possession of stolen property in the third degree and one and
a half to three years for criminal possession of stolen property in the
fourth degree, which were to run concurrently, as well as a one year
determinate sentence for unauthorized use of a motor vehicle.
154
145
Smith, 955 N.Y.S.2d at 374.
146
Id. at 374-75.
147
Id. at 375.
148
917 N.Y.S.2d 293 (App. Div. 2d Dep’t 2011).
149
Id. at 294.
150
Id.
151
Id.
152
903 N.Y.S.2d 703 (Sup. Ct. 2010).
153
Id. at 704.
154
Id.
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When the defendant was originally sentenced, the court did not im-
pose a term of post-release supervision for the determinate sentenc-
es.
155
In October of 2009, the defendant was supposed to be resen-
tenced.
156
The defendant filed a motion opposing the resentencing
because he claimed that he had a legitimate expectation of finality
and resentencing to impose post-release supervision violated his
Double Jeopardy rights.
157
The defendant was conditionally released
from incarceration in November of 2009, and his maximum expira-
tion date would have been in April of 2011.
158
In December of 2009,
the court denied the defendant’s motion and held that he “did not
have a legitimate expectation of finality in the original sentence” be-
cause “PRS [post-release supervision] is a mandatory component of
all determinate prison sentences, a sentence imposed without PRS
would be unauthorized [and] illegal; hence, a defendant could not
have a legitimate expectation of finality in an illegal sentence.”
159
The court resentenced the defendant and imposed the post-release su-
pervision term of five years.
160
The defendant moved for the order to
be vacated.
161
The court distinguished Wells from Williams.
162
In Williams,
the defendants were beyond the maximum expiration dates of their
original sentences when they were resentenced; whereas, in this case,
the defendant was resentenced in December of 2009, and his maxi-
mum expiration date was not until April of 2011.
163
The court stated
that there were no decisions from the Appellate Division regarding
imposition of post-release supervision on a defendant who was condi-
tionally released from prison, served his initial sentence, completed
the direct appeal and the time for appeal has expired, but the maxi-
mum expiration date of the originally imposed sentence was not
reached.
164
The court held, in accordance with the Williams decision,
that the defendant’s Double Jeopardy rights attached on the date in
which the defendant was conditionally released in November of
155
Id.
156
Id.
157
Wells, 903 N.Y.S.2d at 704.
158
Id.
159
Id.
160
Id.
161
Id. at 703.
162
Wells, 903 N.Y.S.2d at 705.
163
Id.
164
Id.
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2009.
165
Thus, it was improper to resentence the defendant to impose
post-release supervision in December of 2009.
166
The court reasoned
that the defendant was “entitled to the same constitutional rights as
other defendants whose maximum expiration dates have passed.”
167
IV. CONCLUSION
After evaluating the federal approach and the New York State
approach on resentencing under the Double Jeopardy Clause, it is
reasonable to conclude that the court in Brinson followed the proper
precedent when determining whether resentencing a defendant to im-
pose a term of mandatory post-release supervision to the original ille-
gal determinate sentence violated the Double Jeopardy Clause of the
Fifth Amendment. Brinson was not a case of first impression. There
were several questions in which the court in Brinson looked to both
federal courts and state courts for answers. The Brinson case is im-
portant because the court sets out the precedent for resentencing de-
fendants who were serving illegal determinate sentences that did not
include a period of post-release supervision in New York.
The defendants in Brinson were resentenced because the sen-
tencing court failed to include a term of post-release supervision with
their original illegal determinate sentences.
168
The court cited
Sparber as authority to conclude that when a required sentence is not
pronounced during sentencing, the error can be corrected by pro-
nouncing it in the presence of the defendant at resentencing.
169
The
court in Brinson also “presume[d] [the] defendants knew that their
determinate sentences were illegal, and that they knew they were sub-
ject to resentencing until such time as they completed their respective
sentences,” which was in accordance with Lingle.
170
The court in this
case, unlike Williams, took into consideration that the originally im-
posed sentences were illegal and the defendants were presumed to
know of the illegality.
171
Furthermore, the court in Brinson followed Richardson and
165
Id.
166
Id. at 705-06.
167
Wells, 903 N.Y.S.2d at 706.
168
Brinson, 995 N.E.2d 145.
169
Sparber, 889 N.E.2d at 464-66.
170
Lingle, 949 N.E.2d at 955- 57.
171
Id.
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stated “courts have an inherent authority to correct illegal sentenc-
es.”
172
Richardson cited the Supreme Court’s decision in Bozza for
their authority for correcting illegal sentences.
173
Other courts have
continuously followed the precedent set in Bozza. The court in Hen-
derson stated that correcting an illegal sentence by imposing a legal
one is not a multiple punishment for the same offense.
174
The New
York Court of Appeals stayed consistent with the federal precedent in
Minaya. Even though the facts of Minaya are slightly different in
which the resentencing of the defendant increased his sentence, the
court still came to the same conclusion that the court’s power to cor-
rect an error does not violate the Double Jeopardy Clause.
175
The final and most important issue in Brinson was whether
the defendants had a legitimate expectation of finality. The court
used Williams’ reasoning that a legitimate expectation of finality
cannot be achieved unless the defendant has completed the imposed
sentence.
176
Many other courts have used this reasoning to determine
when a legitimate expectation of finality has been achieved. The Se-
cond Circuit answered the issue in King. The facts of King are anal-
ogous to Brinson and the courts both held the defendants would not
have a reasonable expectation of finality until they had completed
their determinate terms and had been released.
177
Additionally, the
New York Appellate Division, in Smith and Scott, also ruled on the
issue of legitimate expectation of finality. The court’s holding in
Brinson was consistent with the holdings in Smith and Scott.
178
These
cases establish that the courts consistently apply the same test to de-
termine legitimate expectation consistently.
Even though the United States Supreme Court has not ruled
on whether a defendant has a legitimate expectation of finality when
he or she is still serving the originally imposed illegal sentence, there
is consistency among the federal and the state courts. Ultimately, the
New York Court of Appeals decision in Brinson applied the proper
precedent and found the defendants’ Double Jeopardy rights were not
violated.
172
Brinson, 995 N.E.2d at 145-46.
173
Bozza, 330 U.S. at 166-67.
174
Henderson, 474 F.2d at 513.
175
Minaya, 429 N.E.2d at 1162-64.
176
Brinson, 995 N.E.2d at 148.
177
Id. at 145; King, 465 F. App’x at 45.
178
Brinson, 995 N.E.2d at 145; Smith, 955 N.Y.S.2d at 374-75; Scott, 917 N.Y.S.2d at
294.
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Deirdre Cicciaro
J.D. Candidate 2015, Touro College Jacob D. Fuchsberg Law Center; B.S. 2011 in Busi-
ness Administration, St. Joseph’s College. I would like to thank Professor Jeffrey Morris for
his considerate comments on this Note and my family for all of their love and support.
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