Appeal from a judgment of the Justice Court of the Village of Fishkill, Dutchess County (Stephen L. Greller, J.), rendered July 27, 2009.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on February 15, 2012
PRESENT: NICOLAI, P.J., MOLIA and IANNACCI, JJ
The judgment convicted defendant, upon his plea of guilty, of petit larceny.
ORDERED that the judgment of conviction is affirmed.
On April 14, 2009, defendant was arrested on the charge of petit larceny (Penal Law § 155.25) and, following an arraignment, was remanded to Dutchess County Jail. On April 27, 2009, defendant entered a guilty plea to the charged offense and was given Parker warnings (see People v Parker, 57 NY2d 136 ), which he indicated that he understood. Thereafter, defendant was released on his own recognizance pending the preparation of a presentence report, and sentencing was scheduled for June 29, 2009. On that date, defendant appeared and upon reviewing the presentence report, the Justice Court found that defendant had been arrested three times since his last appearance, in violation of the Parker warnings. Consequently, the Justice Court remanded defendant to Dutchess County Jail pending his next appearance on July 27, 2009. The case file contains a "Commitment of Defendant" form dated June 29, 2009 which indicates that on that date defendant was committed for 60 days for the petit larceny conviction. Defendant was released from jail on July 24, 2009. On July 27, 2009, the court effectively imposed a split sentence of 44 days' imprisonment as a condition of three years' probation, which term of imprisonment was satisfied by the time defendant had previously served (see People v Conley, 70 AD3d 961 ), and a $265 fine.
In his affidavit of errors and again on appeal, defendant contends that he was sentenced to 60 days for the petit larceny conviction on June 29, 2009 and then re-sentenced on July 27, 2009 to three years' probation in violation of the statutory prohibition against altering a sentence once it has been imposed (CPL 430.10) as well as his double jeopardy protection against multiple punishments for the same offense. In its return, the Justice Court stated that the "Commitment of Defendant" form contained in the case file reflected a clerical error, and that defendant had been committed on June 29, 2009 pending sentencing as a result of his violation of Parker warnings and sentenced only once, on July 27, 2009.
With respect to defendant's statutory claim that a sentence cannot be changed once imposed, we note that this rule does not preclude a court from correcting its record when an error is clerical in nature or where such change is undertaken so that the record will reflect the truth (see People v Richardson, 100 NY2d 847, 850 ; People v Gammon, 30 Misc 3d 46 [App Term, 9th & 10th Jud Dists 2010]). Furthermore, as we are bound by the Justice Court's explanation in its return (see People v Prior, 4 NY2d 70, 73 ; People v Muhammad, 29 Misc 3d 143[A], 2010 NY Slip Op 52209[U] [App Term, 9th & 10th Jud Dists 2010]), we find that defendant's contention that his sentence was impermissibly altered in contravention of CPL 430.10 is without merit.
Defendant's argument that he was illegally sentenced twice in violation of his protection against double jeopardy is belied by the Justice Court's return indicating that defendant was committed as result of his Parker violations on June 29, 2009 and that it was understood at that time that sentencing would be determined at the next appearance on July 27, 2009.
Accordingly, the judgment of conviction is affirmed.
Nicolai, P.J., Molia and Iannacci, ...