| People v Clapper |
| 2015 NY Slip Op 08464 [133 AD3d 1036] |
| November 19, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Scott A. Clapper, Appellant. |
Barrett D. Mack, Albany, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Peter M. Willis of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the Supreme Court (Milano, J.), renderedDecember 9, 2013 in Schenectady County, convicting defendant upon his plea of guiltyof the crime of burglary in the third degree.
In satisfaction of a three-count indictment, defendant entered a guilty plea to burglaryin the third degree and executed a written appeal waiver. The plea agreement providedthat defendant would receive a prison sentence of 1 to 3 years, to be served consecutivelyto the sentences expected to be imposed upon his recent guilty plea in an unrelated matterin Schoharie County (People v Clapper, 133 AD3d 1037 [decided herewith]). On December 9, 2013, Supreme Court imposed theagreed-upon prison sentence of 1 to 3 years on this Schenectady County matter, andspecified that it was to be served consecutively to the Schoharie County sentences.However, defendant was not sentenced on the Schoharie County matter until January 8,2014 (id.). Defendant now appeals from the judgment entered in SchenectadyCounty.
Initially, defendant's unchallenged appeal waiver does not preclude his argumentsregarding the legality of his sentence (see People v Callahan, 80 NY2d 273, 280[1992]). As defendant argues, and the People concede, Supreme Court had no authorityto direct that the sentence for burglary in the third degree be served consecutively to theSchoharie County [*2]sentences that had not yet beenimposed (see Penal Law § 70.25 [1]).[FN*] That is, the "sentencing discretionafforded by Penal Law § 70.25 (1) devolves upon the last judge in thesentencing chain" (Matter ofMurray v Goord, 1 NY3d 29, 32 [2003]). Accordingly, the sentence here mustbe vacated and the matter remitted for resentencing.
With regard to defendant's contentions concerning the ineffectiveness of counselraised in his pro se brief, they are unpreserved for our review due to defendant's failure tomake an appropriate postallocution motion (see People v Kormos, 126 AD3d 1039, 1040 [2015]).Moreover, they concern matters outside of the record on appeal that are moreappropriately addressed in the context of a CPL article 440 motion (see People v Toback, 125AD3d 1060, 1061-1062 [2015], lv denied 25 NY3d 993 [2015]).
McCarthy, J.P., Rose and Devine, JJ., concur. Ordered that the judgment is modified,on the law, by vacating the sentence imposed; matter remitted to the Supreme Court forfurther proceedings not inconsistent with this Court's decision; and, as so modified,affirmed.
Footnote *:The record does notreflect that the People, upon discovering this error, moved, as they should have, to setaside the sentence as illegal (see CPL 440.40 [1]).