| People v Bernell |
| 2010 NY Slip Op 02346 [71 AD3d 1516] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Frank Bernell,Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown (Walter M. Jeram, Jr., of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedJanuary 23, 2009. The judgment convicted defendant, upon his plea of guilty, of promotingprison contraband in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence and as modified the judgment is affirmed, and the matter is remitted toJefferson County Court for resentencing.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofpromoting prison contraband in the second degree (Penal Law § 205.20 [2]). Atsentencing, defendant requested that the sentence run concurrently with the indeterminatesentence he was serving at that time. In denying the request, County Court stated that it was "notauthorized by law to make that concurrent. It must be consecutive." In fact, however, the courthad the discretion to impose concurrent sentences (see § 70.25 [1]; People vWoodard, 201 AD2d 896 [1994]). " 'The failure of the court to apprehend the extent of itsdiscretion deprived defendant of the right to be sentenced as provided by law' " (People v Schafer, 19 AD3d 1133[2005]). We therefore modify the judgment by vacating the sentence, and we remit the matter toCounty Court for resentencing. In light of our determination, we do not address defendant'schallenge to the severity of the sentence. Present—Smith, J.P., Centra, Lindley, Sconiersand Pine, JJ.