People v Bailey
2012 NY Slip Op 01472 [92 AD3d 890]
February 21, 2012
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 28, 2012


The People of the State of New York, Respondent,
v
Louis Bailey, Appellant.

[*1] Lynn W. L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.

Appeal by the defendant from a resentence of the Supreme Court, Kings County (Brennan, J.), imposed March 16, 2011, which, upon his conviction of criminal possession of a weapon in the second degree, imposed a period of postrelease supervision in addition to the determinate term of imprisonment previously imposed by the same court (Chambers, J.), on March 27, 2003.

Ordered that the resentence is affirmed.

Contrary to the defendant's contention, his resentencing to a term including the statutorily required period of postrelease supervision did not subject him to double jeopardy or violate his right to due process, since he had not yet completed his originally imposed sentence of imprisonment at the time he was resentenced (see People v Lingle, 16 NY3d 621, 630-632 [2011]; People v Mills, 90 AD3d 1076 [2011]; People v Louis, 90 AD3d 1075 [2011]; People v Algarin, 89 AD3d 859 [2011]; People v Harris, 86 AD3d 543, 543-544 [2011]).

On an appeal from a resentence to correct a Sparber error (see People v Sparber, 10 NY3d 457 [2008]), this Court lacks the authority to reconsider the incarceratory component of the defendant's sentence (see People v Lingle, 16 NY3d at 635; People v Edwards, 89 AD3d 1034 [2011]). Angiolillo, J.P., Leventhal, Austin and Roman, JJ., concur.