Defendant appeals from a judgment of resentence, Supreme Court, Bronx County (Troy K. Webber, J.), rendered July 27, 2006, resentencing him upon his conviction of reckless endangerment in the first degree and other crimes to a term of four months' intermittent imprisonment to be served on weekends, five years' probation and a fine, and from an order, same court and Justice, entered on or about March 17, 2008, which denied his CPL 440.20 motion to set aside the resentence.
The opinion of the court was delivered by: McGUIRE, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Richard T. Andrias, J.P., John W. Sweeny, Jr., James M. McGuire, Leland G. DeGrasse, JJ.
The principal issue on this appeal may be a novel one - the parties cite no precedent squarely on point - concerning the scope of the right secured by the double jeopardy provisions of the federal and state constitutions (US Const 5th Amend; NY Const, art I, § 6) not to be punished twice for the same offense. We need not, however, survey double jeopardy precedents to resolve this issue. The parties each rely on two decisions of the United States Supreme Court, Ex parte Lange (18 Wall [85 US] 163 ) and In re Bradley (318 US 50 ), that are pillars of the third protection afforded by the double jeopardy clause of the federal and state constitution, "the protection against multiple punishments for the same offense" (Jones v Thomas, 491 US 376, 381  [internal quotation marks omitted]; see also People v Biggs, 1 NY3d 225, 228-229 ). Both cases held that the right not to be punished twice for the same offense was violated by sentences that are similar to both the original and revised sentences imposed in this case. The sentences imposed in Ex parte Lange and In re Bradley, however, differ in a critical respect from the original and revised sentences. That difference requires the conclusion that defendant's double jeopardy claim is without merit.
Defendant was convicted upon his plea of guilty to every count remaining in the indictment at the time of the guilty plea, a misdemeanor drug possession charge previously having been dismissed. As is clear from the prosecutor's statements, the People insisted that defendant plead guilty to the entire indictment in light of their opposition to the promised sentence. Specifically, defendant pleaded guilty to reckless endangerment in the first degree, criminally negligent homicide, criminal mischief in the fourth degree, operating a motor vehicle while under the influence of alcohol and two counts of leaving the scene of an incident without reporting.
In the plea colloquy defendant admitted under oath that on March 29, 2003, after consuming alcohol, he drove a motor vehicle at a speed in excess of the posted limit on a street in the Bronx before striking and causing more than $250 in damages to a parked car. He admitted that he thereafter drove his vehicle in reverse, striking his passenger, Ida Benitez, with the back door of the vehicle as she exited, inflicting fatal injuries. Defendant also admitted that although he knew he had struck Ms. Benitez, he fled the scene without reporting to the police either that he had caused damage to the parked car or injured Ms. Benitez. Finally, defendant did not dispute the results of a breathalyzer test indicating that he had a blood alcohol level of .08.
At the outset of the plea proceedings, defendant's attorney stated that defendant was offering to plead guilty on the understanding that he would be sentenced to a "six month split," by which, as is clear from the subsequent discussion, counsel meant a period of six months' intermittent incarceration (to be served on weekends) and a period of five years' probation. Counsel further stated that although he had discussed with defendant the option of pleading guilty and receiving a sentence of intermittent prison of one year to be served on weekends, defendant had "opted to take the six months and the probation offer rather than one year." The court promised defendant that he would be sentenced to a term of six months' intermittent imprisonment, which would be served on weekends, and five years' probation. Following the allocution, the prosecutor expressed satisfaction with the allocution itself but stated the People's position that the appropriate sentence was a prison sentence of one to three years' incarceration.
At the sentencing proceeding on October 5, 2005, defense counsel stated that defendant was relying on the promised sentence. The court noted that defendant had pleaded guilty to a violation of subdivision 1 of Vehicle and Traffic Law § 1192, operating a motor vehicle while under the influence of alcohol, and that the court did not recall whether it had stated at the plea proceeding that a fine of $500 was "mandatory" upon a conviction for that crime. When defense counsel stated he was not sure if such a fine was required, the court asserted that it and a 90-day suspension of defendant's driver's license were required*fn1. The court asked defense counsel if he had anything else to say, and counsel responded, "I think that's it." When the court asked defendant if he had anything to say before sentence was imposed, defendant stated, "No."
The court then pronounced the sentence. Specifically, the court stated that "the sentence of the Court ... on defendant's plea of guilty to reckless endangerment in the first degree, criminally negligent homicide, operating a motor vehicle while under the influence of alcohol, leaving the scene of an incident without reporting two counts, is a term of incarceration of six months plus a term of probation of five years." In addition, the court stated that "there's a fine imposed in the amount of five hundred dollars" and directed both a 90-day suspension of defendant's driver's license and the imposition of surcharges that are not relevant to the issues presented on appeal. The court went on to state that defendant's weekend incarceration would commence on November 11, 2005, with the final weekend commencing on May 12, 2006 and ending on May 14, 2006. Finally, the court set December 30, 2005 as the date by which defendant was required to pay the $500 fine, but made clear that if defendant did not have the money by that date he would be given additional time to pay it. Defendant voiced no objection to any aspect of the sentence.
The court's comments prior to pronouncing sentence make clear that the $500 fine was imposed on the conviction for operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192), which is a traffic infraction under the particular facts of this case (Vehicle and Traffic Law § 1193[a]) as defendant was convicted under subdivision 1 of Vehicle and Traffic Law § 1192 for driving while his ability to operate a motor vehicle was impaired by the consumption of alcohol. The court otherwise failed to specify the sentence for each offense and also failed to mention the conviction for the class A misdemeanor of criminal mischief in the fourth degree (Penal Law § 145.00). Although the parties do not discuss either failure, or mention the latter, we briefly discuss both below, as well as another problem with the sentence that the parties do not mention.
Thereafter, the court modified the sentence on several occasions by changing the dates on which defendant would serve the remaining period of intermittent imprisonment and by resentencing defendant on one of those occasions, December 13, 2005, to an intermittent prison term of 5 months. The legality of neither the modifications nor the resentencing to an intermittent prison term of 5 months is in dispute on this appeal.
Defendant's double jeopardy claim arises from another resentencing proceeding, conducted on July 26, 2006*fn2. Penal Law § 60.01(2)(d) provides as follows:
"In any case where the court imposes a sentence of imprisonment not in excess of sixty days for a misdemeanor or not in excess of six months for a felony or in the case of a sentence of intermittent imprisonment not in excess of four months, it may also impose a sentence of probation or conditional discharge provided that the term of probation or conditional discharge together with the term of imprisonment shall not exceed the term of probation or conditional discharge authorized by article sixty-five of this chapter. The sentence ...