| People v Allende |
| 2010 NY Slip Op 08616 [78 AD3d 553] |
| November 23, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v RichardAllende, Appellant. |
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Judgment of resentence, Supreme Court, New York County (Edward J. McLaughlin, J.), renderedNovember 13, 2009, resentencing defendant to a term of 25 years to life, to be served consecutively toa prior undischarged term of imprisonment, unanimously reversed, on the law, the judgment ofresentence vacated and the original sentence reinstated.
In imposing sentence on defendant's murder conviction in 2007, the court failed to direct thesentence to run either concurrently or consecutively to defendant's undischarged term on a priorrobbery conviction. Therefore, by operation of then-existing law (Penal Law § 70.25 [1] [a]),the sentences ran concurrently. As a result, the time defendant served under the robbery sentence wascredited toward the murder sentence, and defendant became eligible for consideration for parole on themurder sentence in 2009, although parole was denied. The court thereafter convened all parties, statedthat it had intended the sentences to run consecutively and resentenced defendant accordingly.
However, the court's postjudgment statements of original intent did not permit the subsequentmodification of defendant's sentence in violation of CPL 430.10, and the court did not have the inherentauthority to make that change. "The authority to modify a lawful sentence that has commenced is limitedto situations where the record in the case clearly indicates the presence of judicial oversight based uponan accidental mistake of fact or an inadvertent misstatement that creates ambiguity in the record."(People v Richardson, 100 NY2d 847, 853 [2003]).
We find no basis to distinguish Richardson. Initially, we note that this case, likeRichardson, involved a conviction after trial rather than a negotiated plea. As inRichardson, the court and the prosecutor were aware of defendant's prior undischarged term atthe time sentence was imposed on the murder conviction, but the court failed to announce whether theterms were to run consecutively or concurrently, and the court's silence rendered the two sentencesconcurrent.
At the original sentencing, the court made statements that evinced a desire that defendant beincarcerated for an extended period. However, the court did not make a clerical or ministerial mistake,nor did it misspeak when it imposed sentence. Instead, it neglected to structure its [*2]sentence so as to carry out its apparent wish that defendant serve alengthy period of imprisonment before being eligible for parole. Richardson and CPL 430.10simply do not permit that kind of mistake to be corrected after a sentence begins.Concur—Gonzalez, P.J., Tom, Sweeny, Richter and Manzanet-Daniels, JJ.