People v. Goodwill
57 A.D.3d 1479
N.Y. App. Div.
2008
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In the Matter of DANNY ECHEVARRIA, Petitioner, v PATRICIA D. MARKS, Monroe County Court Judge, Respondent.

Appellate Division of the Supreme Court of New York, Fourth Department

869 NYS2d 837

Present —Hurlbutt, J.P., Martoche, Fahey and Gorski, JJ.

Memorandum: Petitioner commenced this original CPLR article 78 proceeding seeking to prohibit respondent from proceeding with resentencing or any other proceedings with respect to a specified indictment. The record establishes that in March 1999 petitioner was sentenced to a determinate term of incarceration of five years along with two lesser indeterminate sentences after pleading guilty under that indictment to, inter alia, rape in the first degree. Respondent failed to advise petitioner at the time of sentencing of the mandatory period of postrelease supervision and, upon his subsequent release from incarceration, petitioner was advised that he was subject to a five-year period of postrelease supervision that had been administratively imposed by the Department of Correctional Services (DOCS). Following the decisions of the Court of Appeals in and , DOCS requested that respondent calendar the matter in order to “allow the parties to be heard on the question of whether to resentence [petitioner]” in light of those decisions. Respondent scheduled the matter “for consideration of whether [petitioner] should be resentenced.” Thereafter, petitioner commenced this proceeding alleging, inter alia, that resentencing would violate the prohibition against double jeopardy.

We conclude that the petition must be dismissed. “[T]he