New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
October 10, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from an order of the Criminal Court of the City of New York, Queens County (Ira H. Margulis, J.), dated April 1, 2011.
People v Chan (Calvin)
Appellate Term, Second Department
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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 10, 2012
PRESENT: PESCE, P.J., WESTON and RIOS, JJ
The order granted defendant's motion to, in effect, set aside the sentences imposed and resentenced defendant to concurrent terms of 364 days' incarceration.
ORDERED that the order is reversed, on the law, and defendant's motion to, in effect, set aside the sentences imposed is denied.
On December 19, 2007, defendant pleaded guilty to petit larceny (Penal Law § 155.25) and criminal impersonation in the second degree (Penal Law § 190.25 ) pursuant to a plea and sentencing agreement whereby defendant agreed to be sentenced to concurrent terms of one year's incarceration in satisfaction of numerous, more serious charges arising from two separate criminal incidents. Defendant received the bargained-for sentences and did not appeal from the judgments of conviction.
In October 2010, having served his sentences and awaiting deportation, defendant moved, pro se, for a writ of error coram nobis, alleging that, in pleading guilty, he had relied on his trial counsel's erroneous advice that there would be no deportation consequences as a result of those pleas. The People opposed the motion. Before the Criminal Court decided the motion, defendant, represented by new counsel, offered to withdraw the motion if the court resentenced defendant to a term of 364 days' incarceration on each conviction, thereby, according to counsel, obviating any basis for defendant's deportation. The People opposed defense counsel's application to have the court resentence defendant to a term of 364 days, arguing, among other things, that defendant's prior multiple convictions for offenses of moral turpitude rendered him eligible for deportation without reference to the new convictions, and that the court was without authority to change a sentence once its term had commenced. The Criminal Court accepted defense counsel's offer and stated that it intended to resentence defendant as requested "in the interest of justice." In an order dated April 1, 2011, the court, in effect deeming defendant's application as a motion for relief pursuant to CPL 440.20, resentenced defendant, "nunc pro tunc," to concurrent terms of 364 days' incarceration on each conviction.
The People appeal and we reverse.
Pursuant to CPL 430.10, the Criminal Court had no authority to change defendant's sentences. "Except as otherwise specifically authorized by law, when the court has imposed a sentence of imprisonment and such sentence is in accordance with the law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced" (CPL 430.10; see e.g. People v Richardson, 100 NY2d 847, 850-851 ; People v Carpenter, 19 AD3d 730, 732-733 ).
There is no basis on this record for a finding that defendant's sentences were "unauthorized, illegally imposed or otherwise invalid as a matter of law" so as to warrant the setting aside of defendant's sentences (CPL 440.20 ). As the order was premised on defendant's agreement to withdraw his coram nobis application, deemed by the court as resubmitted pursuant to CPL 440.20 (1), this determination is without prejudice to defendant, should he be so advised, moving to vacate the underlying judgments pursuant to CPL 440.10 on the grounds stated in his original application.
Accordingly, the order is reversed and defendant's motion to, in effect, set aside the sentences imposed is denied.
Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: October 10, 2012
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