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The People of the State of New York v. Brian Gammon

December 15, 2010

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
BRIAN GAMMON,
APPELLANT.



Appeal by defendant from a resentence of the District Court of Suffolk County, First District (Dennis M. Cohen, J.), imposed June 17, 2009, upon his admission to a violation of probation.

People v. Gammon (Brian)

Decided on December 15, 2010 Appellate Term, Second Department 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 printed Miscellaneous Reports.

PRESENT: IANNACCI, J.P., NICOLAI and MOLIA, JJ

ORDERED that the resentence is affirmed.

After being convicted of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), defendant was sentenced on May 4, 2006 to three years of probation, a condition of the probation being a term of 60 days in jail, and a fine. He served the 60-day term and was released. On June 2, 2009, he admitted to a violation of probation. During the course of the admission proceeding, the District Court told defendant:

"I promised that I would sentence you to an additional 60 days incarceration. That's in addition to the 60 days you already served, and terminate you from probation."

On June 8, 2009, the sentencing date for the violation of probation, the following took place: "THE COURT: Pursuant to my promise on June 2, the defendant is terminated from probation. I sentence him to 60 days in jail. [DEFENSE COUNSEL]: I will just add, we talked about the possibility of the Stop DWI facility. THE COURT: That's fine. We'll do stop [sic] DWI if eligible. [DEFENSE COUNSEL]: I appreciate that . . ." The court file contains a commitment sheet dated June 8, 2009 that reads, in part, as follows: "COUNT 1. 60 DYS in SCJ in Stop DWI"

On the day of the sentencing, defendant was first taken to the Suffolk County Jail and then released. It may be surmised that he was released because the jail personnel understood his sentence to be simply 60 days, as opposed to an additional 60 days, and credited him with the time applicable to his original 60-day jail term (see Penal Law § 70.30 [5]).

After learning of defendant's release, the District Court first held an informal hearing with defense counsel and the prosecutor on June 11, 2009, and then held a formal resentencing proceeding in defendant's presence on June 17, 2009. It resentenced defendant to "120 days in jail which is an additional 60 days to the 60 days sentence that he already served" (see Penal Law § 70.30 [5]). The court imposed the resentence over a protest by the defense that the resentencing violated CPL 430.10, and over the People's agreement that the resentencing was improper. The court file contains a commitment sheet dated June 17, 2009 that reads, in part, as follows: "COUNT 1. 120 DAYS IN SCJ with credit for time served"

Defendant now argues that the resentencing violated CPL 430.10, the prohibition against double jeopardy, and the requirements of due process. The People agree that the resentencing was both statutorily and constitutionally infirm.

We reject the statutory claim, which is preserved. Criminal Procedure Law section 430.10 ("Sentence of imprisonment not to be changed after commencement") provides: "Except as otherwise specifically authorized by law, when a 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."

Despite the restriction imposed by CPL 430.10, "courts retain the inherent power to correct their records, where the correction relates to mistakes, or errors, which may be termed clerical in their nature, or where it is made in order to conform the record to the truth'" (People v Richardson, 100 NY2d 847, 850 [2003], quoting People v Minaya, 54 NY2d 360, 364 [1981] [additional internal quotation marks and citation omitted]; see People v Wright, 56 NY2d 613, 614 [1982]; see also People v Williams, 14 NY3d 198, 212 [2010]). Here, where the District Court's intent to impose a sentence of an additional 60 days for the violation of probation was apparent from the face of the records of the violation of probation proceeding and the original sentencing for the violation of probation, the resentencing for the violation was permissible (see Wright at 614; Minaya at 364-365; cf. Richardson, 100 NY2d 847; People v Allende, ___ AD3d ___, 2010 NY Slip Op 08616 [1st Dept 2010]).

We also reject the double jeopardy claim, which does not require preservation (see Williams at 221). The prohibition against double jeopardy does not create a blanket rule that a court may never correct an error by increasing a defendant's sentence (see e.g. United States v DiFrancesco, 449 US 117, 134 [1980] ["a sentence does not have the qualities of constitutional finality that attend an acquittal"]). Nevertheless, as the Court of Appeals noted in Williams, the prohibition against double jeopardy does mean that a defendant's sentence may not be increased "once the defendant has a legitimate expectation in the finality of the sentence" (Williams at 215, citing United States v DiFrancesco, 449 US at 135-136). At issue in Williams and its companion cases was whether terms of postrelease supervision (PRS) could be added to the sentences of defendants who had illegally received determinate sentences lacking the PRS component. Applying the legitimate-expectation-of-finality rule, the Court held that PRS terms could not be added to the defendants' sentences "after [the ...


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