| People v Passino |
| 2013 NY Slip Op 02112 [104 AD3d 1060] |
| March 28, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v CarlW. Passino Jr., Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Kevin P. Donlon of counsel),for respondent.
Egan Jr., J. Appeals (1) from a judgment of the County Court of Warren County(Hall Jr., J.), rendered September 2, 2010, convicting defendant upon his plea of guilty ofthe crime of criminal possession of a controlled substance in the fifth degree and theviolation of driving while ability impaired, and (2) from a judgment of said court,rendered September 2, 2010, convicting defendant upon his plea of guilty of the crimesof criminal sale of a controlled substance in the third degree (two counts) and criminalpossession of a controlled substance in the third degree.
In April 2009, defendant waived indictment and pleaded guilty to a superior courtinformation charging him with criminal possession of a controlled substance in the fifthdegree and driving while ability impaired. In connection with his plea, defendant was tobe sentenced to five years of probation—provided he first complied with the termsof a one-year period of interim probation supervision. Failure to abide by the enumeratedterms and conditions of such probation would expose defendant to a prison term of up to2½ years.
Less than one year later, defendant was charged in a 12-count indictment withvarious drug-related offenses and, in full satisfaction thereof, pleaded guilty to criminalsale of a controlled substance in the third degree (two counts) and criminal possession ofa controlled [*2]substance in the third degree. Pursuant tothe underlying plea agreement, defendant was sentenced to an aggregate prison term ofseven years and a period of postrelease supervision. Based upon that same conduct,defendant was found to have violated the terms of his interim probation and wassentenced to 2½ years in prison followed by one year of postrelease supervision,said sentence to run consecutively to the sentences imposed upon the indicted charges.These appeals by defendant ensued.
We affirm. Although County Court attempted to impose consecutive periods ofpostrelease supervision, "the periods of postrelease supervision imposed [up]on[defendant's] consecutive terms of imprisonment 'shall merge with and be satisfied bydischarge of the period of post[ ]release supervision having the longest unexpired time torun' " (People vVanValkinburgh, 90 AD3d 1553, 1554 [2011], quoting Penal Law §70.45 [5] [c]; see People vNelson, 46 AD3d 932, 933 [2007], lv denied 10 NY3d 814 [2008]; People v Dukes, 14 AD3d732, 732 [2005], lv denied 4 NY3d 885 [2005])—here, two years.Accordingly, we need not remit for clarification or other corrective action (see Peoplev Dukes, 14 AD3d at 732).
Defendant's challenge to the validity of his respective waivers of the right to appealis similarly unavailing, as the record reflects that County Court adequately explained thenature of the rights being forfeited and defendant executed detailed written waivers inopen court (see People vRevette, 102 AD3d 1065, 1065 [2013]). Having validly waived his right toappeal his convictions and sentences, defendant is precluded from now arguing that thesentences imposed were harsh and excessive (see People v Ferro, 101 AD3d 1243, 1244 [2012]).
Nor are we persuaded that defendant should be permitted to withdraw his plea to thesuperior court information because restitution was not part of the underlying pleaagreement (see generally Peoplev Gantt, 63 AD3d 1379, 1379-1380 [2009]). Notwithstanding the limitationsotherwise imposed by CPL 430.10, "[a] court has the inherent power to correct itsmistake in sentencing a defendant where the mistake is clear from the record and thecorrection fully comports with the expectations of the parties at the time of sentencing"(People v Jackson, 59AD3d 971, 972 [2009], lv denied 12 NY3d 854 [2009]; see People vRichardson, 100 NY2d 847, 850-851 [2003]). Here, it is apparent that County Courtsimply misspoke when it initially ordered restitution with respect to defendant'sconviction of criminal possession of a controlled substance in the fifth degree and, uponrealizing its error, the court verified that "there was no restitution [awarded] in thismatter" and directed that an amended sentence and commitment order be issued omittingany reference thereto. County Court's clarification in this regard was entirely permissibleand, therefore, defendant's argument on this point must fail. Defendant's relatedchallenge to the imposition of the statutory surcharge also is unpersuasive, as "we do notrequire that a defendant be advised, prior to his or her plea, that the statutory surcharge isa part of the sentence" (People vFauntleroy, 57 AD3d 1167, 1168 [2008] [internal quotation marks and citationomitted]). We have examined defendant's remaining contentions and find them to belacking in merit.
Peters, P.J., Lahtinen and McCarthy JJ., concur. Ordered that the judgments areaffirmed.