| People v Jackson |
| 2009 NY Slip Op 00802 [59 AD3d 971] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ConstantineJackson, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a resentence of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered October 6, 2006. Defendant was resentenced to an indeterminate term of imprisonmentof 15 years to life upon his conviction of murder in the second degree.
It is hereby ordered that the resentence so appealed from is unanimously affirmed.
Memorandum: Defendant was convicted upon his plea of guilty of murder in the seconddegree (Penal Law § 125.25 [2]), and he appeals from the resentence on that conviction.During the plea colloquy, Supreme Court expressed its intent to order that defendant's sentencerun consecutively to a prior undischarged sentence. Defendant stated that he understood thecourt's intention, and he then entered his plea of guilty. During sentencing, however, the courtfailed to state on the record that the sentence was to run consecutively to the prior sentence. Thecourt granted the People's motion to correct the error after the People discovered that thesentences were running concurrently, and the court resentenced defendant to an indeterminateterm of 15 years to life, to run consecutively to the prior sentence. We affirm.
A court has the inherent power to correct its mistake in sentencing a defendant where themistake is clear from the record and the correction fully comports with the expectations of theparties at the time of sentencing (see People v Richardson, 100 NY2d 847, 850-851[2003]; Matter of Campbell v Pesce, 60 NY2d 165, 169 [1983]). Here, the recordestablishes that the court unequivocally expressed its intent to order that the sentence runconsecutively to the prior sentence during the plea colloquy, and there is no indication that thefailure to do so was anything other than a mere oversight. Because the corrected sentenceconforms to the parties' expectations, the correction was proper (see People v Wright, 56NY2d 613, 615 [1982]; People v Minaya, 54 NY2d 360, 364-365 [1981], certdenied 455 US 1024 [1982]; seealso People v Fountaine, 8 AD3d 1107 [2004], lv denied 3 NY3d 706 [2004]).We thus reject the further contention of defendant that the court abused its discretion in denyinghis postjudgment motion to withdraw the plea on the ground that he expected that the sentencewould run concurrently with the prior sentence at the time he entered his plea (cf. People v Bobo, 41 AD3d 129[2007], lv denied 9 NY3d 873 [2007]; People v Ford, 143 AD2d 522 [1988]).Indeed, on the record before us, there is no "evidence of [*2]innocence, fraud, or mistake in inducing the plea" (People vPane, 292 AD2d 850, 850 [2002], lv denied 98 NY2d 653 [2002]).Present—Smith, J.P., Centra, Fahey, Peradotto and Pine, JJ.