People v. Shanks

May 11, 2000
Versions:272 A.D.2d 153
708 N.Y.S.2d 14
2000 N.Y. App. Div. LEXIS 5392

—Judgment of resentence, Supreme Court, New York County (Carol Berk-man, J.), rendered October 29, 1998, convicting defendant, upon his plea of guilty, of manslaughter in the second degree, and sentencing him, as second felony offender, to a term of 5 to 10 years, unanimously affirmed.

The court’s vacatur of the unlawful determinate sentence of 7 years originally imposed and its imposition of the lawful sentence of 5 to 10 years did not violate the prohibition against double jeopardy. Given all relevant legal and practical considerations concerning parole and conditional release, the two sentences were sufficiently comparable that defendant’s le*154gitimate expectation of finality was not violated (see, People v Williams, 87 NY2d 1014; Stewart v Scully, 925 F2d 58). Even if the new sentence were to be viewed as violating defendant’s plea agreement, the proper remedy would be vacatur of the plea, a remedy defendant has not pursued either at resentencing or on appeal (see, People v DeValle, 94 NY2d 870). Concur— Nardelli, J. P., Tom, Mazzarelli, Wallach and Andrias, JJ.