Defendant moves to vacate his October 22, 2008 sentence pursuant to CPL § 440.20 on the ground that it was an illegal resentence and thereby violated the Constitutional prohibition against double jeopardy. For the following reasons, the motion is denied.

On February 3, 2000, defendant was sentenced to a determinate eight-year prison term following his plea of guilty to attempted second degree murder. A term of postrelease supervision was not imposed at that time. In 2001, while serving his prison sentence, defendant was convicted of attempting to promote prison contraband in the first degree. On August 28, 2001, he was sentenced to an indeterminate prison term of one and one-half to three years, imposed consecutively to the original eight-year term for the attempted murder conviction. DOCS applied CPL § 70.30(1)(d) and merged the two sentences. Thus, the maximum expiration date on defendant's sentence was changed from eight to eleven years, with defendant becoming eligible for release after nine and one-half years.

On October 22, 2008, several weeks before the maximum expiration date of November 7, 2008 on defendant's aggregated sentence, the Court resentenced defendant to the same prison term but corrected an error that had occurred at the original sentencing proceedings for the attempted murder conviction and pronounced a two and one-half year period of postrelease supervision (PRS), as required by law (PL § 70.85; Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358 [2008]; People v Sparber, 10 NY3d 457 [2008]). Defendant was granted conditional release on November 7, 2008, and his term of PRS is set to expire on May 7, 2011.

Defendant now claims that his 2008 resentencing to a term of PRS violated the [*2]prohibition against double jeopardy because it occurred after defendant had completed serving his entire determinate prison term. He argues that even though he was still incarcerated at the time, his resentencing was too late because it came after the original maximum expiration date of May 7, 2007, attached to his eight-year determinate sentence.

A double jeopardy violation arises when a defendant is resentenced to a term of PRS after he has completed his sentence and has been released from custody. The Court of Appeals has determined that defendants released from custody prior to resentencing proceedings have a legitimate expectation in the finality of their originally-imposed illegal sentences, regardless of whether they have served their entire prison sentences (People v Williams, 14 NY3d 198, 217 [2010]). Resentencing a released defendant thus violates double jeopardy (id.). The Second Department has followed suit in several instances, holding that the addition of a period of PRS to a defendant's sentence after his release from prison is a double jeopardy violation (People v Hoover, 75 AD3d 561 [2d Dept 2010]; People v Hoover, 75 AD3d 561 [2d Dept 2010]).Moreover, CPL § 70.30(1)(d) provides, in pertinent part:

If the defendant is serving one or more indeterminate sentences of imprisonment and one or more determinate sentence of imprisonment which run consecutively, the minimum term or terms of the indeterminate sentence or sentences and the term or terms of the determinate sentence or sentences are added to arrive at an aggregate maximum term of imprisonment...

In arguing that his resentencing violated double jeopardy, defendant incorrectly assumes that his two consecutive sentences, depite having been merged, still remain distinct. His argument that he was illegally resentenced after the determinate portion of his sentence had ended is misplaced. Rather, courts have held in analogous situations that the merger of two consecutive sentences creates one new, singular sentence (People v Buss, 11 NY3d 553, 557 [2008] [respondent's sentences for sodomy in the second degree and his sentence for attempted promoting prison contraband in the first degree were "made into one" and respondent was subject to all of the consecutive sentences that made up the merged or aggregate sentence he was serving]; People v Delk, 59 AD3d 733, 734 [2d Dept 2009]; also People v Merejildo, 45 AD3d 429 [1st Dept 2007] and People v Curley, 285 AD2d 274 [4th Dept 2001]).

Defendant's double jeopardy claim is without merit. In this instance, defendant was still serving his aggregated prison sentence when he was resentenced to PRS and, therefore, the double jeopardy bar described in Williams does not apply. Defendant had no reasonable expectation in the finality of his sentence at the time he was resentenced because he was still incarcerated (Williams at 217). Defendant's rights were not violated when the court corrected his original illegal sentence within the proper time permitted by law (People v Prendergast, 71 AD3d 1055 [2d Dept 2010] [no double jeopardy violation where defendant was resentenced to PRS while he was still serving his prison sentence]; People v Mendez, 73 AD3d 951 [2d Dept 2010; People v Parisi, 72 AD3d 989 [2d Dept 2010]). [*3]

Accordingly, the motion is denied in its entirety.

This decision constitutes the order of the court.

E N T E R:

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ABRAHAM G. GERGES, J.S.C.