SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1245
KA 08-01501
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ANTONIO NUNES, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)
MICHAEL B. JONES, BUFFALO, FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (SHAWN P. HENNESSY OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Sheila A.
DiTullio, J.), rendered May 28, 2008. The judgment convicted
defendant, upon his plea of guilty, of attempted robbery in the second
degree.
It is hereby ORDERED that said appeal from the judgment insofar
as it imposed sentence is unanimously dismissed and the judgment is
otherwise affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him, upon his plea of guilty, of attempted robbery in the
second degree (Penal Law §§ 110.00, 160.10 [2] [a]) and, in appeal No.
2, he appeals from the resentence imposed on that conviction. With
respect to appeal No. 1, defendant contends that he was “overcharged”
with attempted robbery in the second degree because there was no proof
of any physical injury to the victim. Defendant validly waived his
right to appeal, however, and that valid waiver encompasses his
present contention (see People v Jackson, 39 AD3d 1089, 1090-1091, lv
denied 9 NY3d 845; see generally People v Lopez, 6 NY3d 248, 255).
With respect to appeal No. 2, defendant contends that the
resentence, which imposed a period of postrelease supervision that had
been omitted from the original sentence, violated the constitutional
prohibition against double jeopardy. The Double Jeopardy Clause
prohibits the imposition of a period of postrelease supervision at
resentencing if it “was not formally pronounced by the sentencing
court pursuant to CPL 380.20 . . . [and] defendant has served the
determinate term of imprisonment and has been released from
confinement” by the Department of Correctional Services (People v
Williams, 14 NY3d 198, 217, cert denied ___ US ___, 131 S Ct 125; see
US Const Amend V). In this case, however, defendant had not completed
serving his initial sentence at the time of the resentencing and,
-2- 1245
KA 08-01501
because he had no “legitimate expectation of finality [until that]
initial sentence ha[d] been served,” the Double Jeopardy Clause did
not bar County Court from resentencing him to impose the required
period of postrelease supervision (Williams, 14 NY3d at 217; cf.
People v Rees, 74 AD3d 1815). Finally, the valid waiver by defendant
of the right to appeal encompasses his challenge to the severity of
the resentence (see Lopez, 6 NY3d at 256).
Entered: November 18, 2011 Patricia L. Morgan
Clerk of the Court