State of New York Supreme Court, Appellate Division Third Judicial Department
December 2, 2010
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
DARRYLE W. WRIGHT, APPELLANT.
Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered September 16, 2009, which resentenced defendant upon a verdict convicting him of the crime of murder in the second degree.
The opinion of the court was delivered by: Mercure, J.
MEMORANDUM AND ORDER
Calendar Date: October 12, 2010
Before: Cardona, P.J., Mercure, Lahtinen, Stein and Garry, JJ.
In 1984, defendant was convicted of, among other things, rape in the first degree -- a violent felony sex offense (see Penal Law § 130.35 ) -- and sentenced to 8a to 25 years in prison. Defendant was released to parole supervision in September 2002 and, nine months later, killed his mother with an axe. Following a jury trial in 2004, defendant was convicted of murder in the second degree and sentenced to a term of imprisonment of 25 years to life. Upon appeal, this Court affirmed (38 AD3d 1004 , lv denied 9 NY3d 853 ). We note that no mention was made of the manner in which this sentence was to run relative to defendant's prior undischarged prison term. As a result, defendant's 2004 sentence ran concurrently with his 1984 sentence by operation of law (see Penal Law § 70.25  [a]).
Thereafter, in July 2009, the Albany County District Attorney learned that defendant was scheduled to appear before the Board of Parole in September 2009.*fn1 In response to the District Attorney's request, County Court then "clarified" its intent to impose the maximum sentence possible and directed that defendant's 2004 sentence run consecutively to his prior undischarged prison term.*fn2 This appeal ensued.
CPL 430.10 provides, in relevant part, that "when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced" (see Matter of Budelmann v Leone, 48 AD3d 1206, 1207 ; People v Carpenter, 19 AD3d 730, 731 , lv denied 5 NY3d 804 ). While it is true that an illegal sentence cannot stand (see People v Warner, 69 AD3d 1052, 1054 , lv denied 14 NY3d 894 ; People v Thigpen, 30 AD3d 1047, 1049 , lv denied 7 NY3d 818 ), defendant's sentence -- 25 years to life -- is an authorized sentence for an A-1 felony (see Penal Law § 70.00  [a] [i]).*fn3 "The authority to modify a lawful sentence that has commenced is limited to situations where the record in the case clearly indicates the presence of judicial oversight based upon an accidental mistake of fact or an inadvertent misstatement that creates ambiguity in the record" (People v Richardson, 100 NY2d 847, 853 ).
Although the People argue that County Court's failure to impose a consecutive sentence here qualifies as judicial oversight, this is not an instance where the sentencing court either misspoke (see People v DeVivo, 53 AD3d 787, 788 , lv denied 11 NY3d 787 ) or imposed a sentence that was directly contrary to its stated intent and the parties' expectations (see People v Jackson, 59 AD3d 971, 972 , lv denied 12 NY3d 854 ). Rather, despite its awareness of defendant's prior conviction and undischarged prison term, County Court simply did not state whether it was imposing a consecutive or concurrent sentence. While imposition of a concurrent sentence may not have been the court's intent, nothing on the record prior to imposition of the original sentence reflected otherwise. Hence, despite "the court's postjudgment statements of original intent, the subsequent modification of defendant's sentence was prohibited by CPL 430.10" (People v Richardson, 100 NY2d at 853; see People v Vasquez, 88 NY2d 561, 580-581 ).
Cardona, P.J., Lahtinen, Stein and Garry, JJ., concur.
ORDERED that the judgment is modified, on the law, by directing that defendant's sentence shall run concurrently rather than consecutively, and, as so modified, affirmed.
Robert D. MaybergerClerk of the Court