| People v Jackson |
| 2016 NY Slip Op 01347 [136 AD3d 1056] |
| February 24, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kreem Jackson, Also Known as Ghost,Appellant. |
Robert C. Mitchell, Riverhead, NY (Felice B. Milani of counsel), for appellant, andappellant pro se.
Thomas J. Spota, District Attorney, Riverhead, NY (Philip J. Branigan of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Braslow, J.), rendered June 6, 2013, convicting him of conspiracy in the fourth degree(two counts), criminal sale of a controlled substance in the third degree, criminalpossession of a weapon in the second degree (two counts), criminal purchase of aweapon, bribing a witness, intimidating a victim or witness in the third degree, recklessendangerment in the first degree, and promoting prostitution in the third degree, upon hisplea of guilty, and imposing sentence.
Ordered that the judgment is modified, on the law, by amending the sentence tospecify that the defendant's conviction of criminal possession of a weapon in the seconddegree under count 30 of the indictment was under Penal Law § 265.03 (3);as so modified, the judgment is affirmed, and the matter is remitted to the County Court,Suffolk County, for the issuance of an amended sentence and commitment.
The defendant and 12 codefendants were indicted on multiple charges. The chargesagainst the defendant included, in counts 25 and 30, criminal possession of a weapon inthe second degree in violation of Penal Law § 265.03 (3). The defendantpleaded guilty to all counts against him in the indictment, and during the pleaproceeding, his counsel requested that the County Court issue to the defendant a "violentfelony override" as to both counts 25 and 30 of the indictment. The court stated that itwould consider the request. At sentencing, the court granted the request only as to count25, and denied the request as to count 30, after which the defendant immediately asked towithdraw his plea of guilty because the court was not granting his request on both counts.The court summarily denied the request, and then imposed the promised sentence.
On appeal, the defendant challenges the County Court's denial of his request, withrespect to count 30 of the indictment, for a document of the type described in 7 NYCRR1900.4 (c) (1) (iii), which is sometimes referred to colloquially as a "violent felonyoverride" (see People vLynch, 121 AD3d 717, 718 [2014]). As we explained in Lynch, there isno need for a document of the type described in 7 NYCRR 1900.4 (c) (1) (iii) where thesentence and commitment complies with the requirement of CPL 380.65 to set forth thespecific section and subdivision for each offense [*2]ofwhich the defendant has been convicted (see People v Lynch, 121 AD3d at718-719; see also People vEllis, 123 AD3d 1054 [2014]; People v Nelson, 121 AD3d 719 [2014]). "It is forDOCCS, and not the court or the district attorney, to determine whether conviction undera particular section and subdivision disqualifies an inmate from eligibility" for atemporary release program (People v Lynch, 121 AD3d at 718; see People v Ballato, 128AD3d 846 [2015]; People vWatson, 126 AD3d 731 [2015]; see generally 7 NYCRR 1900.4).
In this case, count 30 of the indictment charged the defendant with criminalpossession of a weapon in the second degree in violation of Penal Law§ 265.03 (3), and the defendant pleaded guilty to that count (among others).The sentence and commitment, however, inexplicably states, with respect to count 30,that the defendant was convicted under Penal Law § "265.03 (1B) [sic],"which is not the subdivision under which the defendant was convicted. Under thecircumstances here, the correct course of action for the County Court would have been tosimply ensure that the sentence and commitment set forth accurate information withrespect to count 30, which would obviate the need for a document of the type describedin 7 NYCRR 1900.4 (c) (1) (iii) (see People v Ellis, 123 AD3d 1054 [2014]; People v Nelson, 121 AD3d719 [2014]). Therefore, we deem it appropriate to modify the judgment by amendingthe sentence to specify that the defendant was convicted, with respect to count 30, underPenal Law § 265.03 (3), and remit the matter to the County Court, SuffolkCounty, for the issuance of an amended sentence and commitment (see People vLynch, 121 AD3d at 719).
The defendant's remaining contentions, including those in his pro se supplementalbrief, are without merit. Leventhal, J.P., Chambers, Sgroi and Barros, JJ., concur.