| People v Griffin |
| 2012 NY Slip Op 06616 [99 AD3d 720] |
| October 3, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Raymond Griffin, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Lauren Tan of counsel), forrespondent.
Appeal by the defendant, by permission, from an order of the County Court, Suffolk County(J. Doyle, J.), dated December 21, 2010, which denied, without a hearing, that branch of hismotion which was pursuant to CPL 440.20 to set aside a sentence of the same court imposedOctober 5, 2009, upon his conviction of robbery in the third degree (three counts), upon his pleaof guilty, and that branch of his motion which was pursuant to CPL 440.10 to vacate a judgmentof the Supreme Court, Suffolk County (Mullen, J.), rendered August 7, 2000, convicting him ofrobbery in the first degree, upon his plea of guilty, and imposing sentence.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendant's motion which was to set aside the sentence imposed October 5, 2009,and substituting therefor a provision granting that branch of the motion; as so modified, the orderis affirmed, and the matter is remitted to the County Court, Suffolk County, for resentencing inaccordance herewith.
The defendant moved, inter alia, to set aside the sentence imposed for his conviction underindictment No. 2221/08, on the ground that he was improperly sentenced as a second felonyoffender based on a conviction which did not meet the statutory definition of a predicate felonyconviction (see Penal Law § 70.06 [1] [a], [b]). The defendant contended that onOctober 16, 2008, the court had resentenced him under indictment No. 1727A/99. He argued thatthe resentencing had changed the effective date for his conviction under indictment No.1727A/99 from the original sentencing date of August 7, 2000, to the resentencing date ofOctober 16, 2008. He argued that since he had committed the offenses underlying indictment No.2221/08 before October 16, 2008, his conviction under indictment No. 1727A/99 could not beused as a predicate felony for his conviction under indictment No. 2221/08.
At the resentencing proceeding, the court merely deleted a period of postrelease supervision(hereinafter PRS), which had been improperly imposed administratively by the Department ofCorrectional Services (now known as the Department of Corrections and CommunitySupervision), and was, therefore, a nullity (see People v Williams, 14 NY3d 198, 218 [2010], cert denied562 US —, 131 S Ct 125 [2010]). Contrary to the defendant's contention, a subsequentcorrection [*2]of a procedural error with respect to a period ofPRS does not change the original sentence date for the purpose of the predicate felony offenderstatute (see People v Naughton, 93AD3d 809, 812 [2012]). Therefore, the defendant failed to establish that he was improperlysentenced as a second felony offender in support of the branch of his motion which was to setaside the sentence imposed under indictment No. 2221/08.
However, we set aside that sentence on other grounds. On July 15, 2009, the defendantpleaded guilty to all charges under indictment No. 2221/08, i.e., three counts of robbery in thethird degree, with the court's promise to sentence him to three indeterminate terms of 2 to 4years, to run concurrently. On October 5, 2009, the court imposed three indeterminate terms of2½ to 5 years each, to run concurrently, over the defendant's objection that these sentencesexceeded the court's promise at the time of his guilty plea to impose concurrent terms of 2 to 4years. The court did not state the reasons for departing from its sentencing promise. The minutesfurther reflect that the court imposed a five-year period of PRS in addition to the indeterminateterms.
As the People correctly concede, the PRS component of the sentence is illegal, since PRS isnot authorized for an indeterminate prison term (see Penal Law §§ 70.06,70.45). Although the period of PRS was not noted on the defendant's Uniform Sentence andCommitment form, the period of PRS was pronounced by the court at the sentencing proceeding,and thus became part of the defendant's sentence. Accordingly, the County Court should havegranted that branch of the defendant's CPL 440.20 motion which was to set aside the PRScomponent of his sentence (cf. People vHoran, 69 AD3d 879, 880 [2010]).
Moreover, as the People also correctly concede, the sentencing court erred in imposing thethree indeterminate terms of 2½ to 5 years. While a sentencing court retains discretion,until the time of sentencing, to fix an appropriate sentence, where the court concludes that itcannot adhere to a sentencing promise, it must state the reasons for departing from the promiseon the record (see People v Schultz, 73 NY2d 757, 758 [1988]; People v Selikoff,35 NY2d 227, 240 [1974], cert denied 419 US 1122 [1975]). Moreover, where the courtwishes to depart from the promised sentence, the court must give the defendant the opportunityto withdraw his guilty plea or, in appropriate circumstances, must honor its sentencing promise(see People v McConnell, 49 NY2d 340, 346 [1980]; People v Selikoff, 35 NY2dat 241). Here, the sentencing court failed to state its reasons for failing to adhere to its promiseand failed to give the defendant an opportunity to withdraw his plea. Under the circumstances ofthis case, including the People's consent to a modification of the sentence by reducing it to anindeterminate term of imprisonment of 2 to 4 years, we remit the matter to the County Court,Suffolk County, for resentencing in accordance with the promise made to the defendant at thetime of his plea.
The defendant's remaining contentions are without merit. Angiolillo, J.P., Florio, Belen andRoman, JJ., concur.
Motion by the People, inter alia, to strike point II (c) of the defendant's reply brief on thegrounds that it refers to matter dehors the record and improperly raises an argument for the firsttime in the reply brief, on an appeal, by permission, from an order of the County Court, Suffolk[*3]County, dated December 21, 2010. By decision and order onmotion of this Court dated June 21, 2012, that branch of the motion was held in abeyance andreferred to the panel of Justices hearing the appeal for determination upon the argument orsubmission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the submission of the appeal, it is,
Ordered that the branch of the motion which is to strike point II (c) of the defendant's replybrief is granted, and point II (c) of the defendant's reply brief is deemed stricken and has not beenconsidered in the determination of the appeal. Angiolillo, J.P., Florio, Belen and Roman, JJ.,concur.