People v. Rodriguez

Chief Judge Lippman (dissenting in part).

Once the Appellate Division directed that the sentences for defendant’s attempted murder and assault convictions were to be served concurrently instead of consecutively (79 AD3d 644 [2010]), the defect in defendant’s sentence was corrected. CPL 430.10 precludes any additional restructuring of defendant’s now-lawful sentence and the Appellate Division’s remittal for the purpose of increasing the severity of the aggregate sentence was erroneous.

Each count for which defendant stands convicted carries its own sentence and the concurrent or consecutive nature of each term of imprisonment is an integral part of that sentence (see e.g. Penal Law § 70.25 [1] [“when multiple sentences of imprisonment are imposed on a person at the same time . . . the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and the undischarged term or terms in such manner as the court directs at the time of sentence”]). Thus, defendant’s aggregate sentence is not greater than the sum of its component parts, entitled to some sort of enhanced legal protection; when the flaws in defendant’s individual sentences were cured, there was no basis for a plenary resentencing proceeding.

CPL 430.10 provides that “[e]xcept as otherwise specifically authorized by law, 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.” This case *673does not present the type of error that Supreme Court possesses the inherent authority to correct (see e.g. People v Richardson, 100 NY2d 847, 850-851 [2003]).* The majority, however, emphasizes the prefatory phrase of CPL 430.10, “[e]xcept as otherwise specifically authorized by law,” and finds that CPL 470.20—the statute addressing the proper corrective action to be taken by the Appellate Division—supplies such authorization.

The generic language of CPL 470.20, in favor of crafting a fair and appropriate remedy, cannot be read to “specifically authorize [ ]” the Supreme Court, upon direction of the Appellate Division, to restructure a lawful sentence. Moreover, the majority is unclear as to the nature of the People’s “right” it purports to protect by this interpretation of the statute. Certainly, there is no right to a 40-year aggregate term. The sentence, as amended by the Appellate Division, might not have been the sentence Supreme Court tried to impose, but it is a lawful sentence and is not the appropriate subject of additional proceedings.

Although People v Yannicelli (40 NY2d 598, 601 [1976]) may be procedurally distinguishable, it remains that there, as here, “the sentences were invalid in only one respect.” And, more importantly, as in Yannicelli, “[t]he defect. . . did not infect all of the sentences” (40 NY2d at 602). The only problem with defendant’s sentence was the consecutive relationship between two offenses that were not committed through separate acts. Defendant’s sentences did not suffer from any additional defect. As a result, CPL 430.10 specifically precludes their further alteration by Supreme Court, and the Appellate Division’s remand to effectuate that resentencing constitutes unlawful corrective action (see CPL 470.10 [3]; 470.35 [2] [c]).

Notably, we recently exhibited our refusal to remit for plenary resentencing to correct a discrete error in People v Lingle (16 NY3d 621 [2011]). In that case, we recognized that neither the Appellate Division nor Supreme Court had the authority to reexamine the entirety of a defendant’s sentence once the particular legal error—there the mistake in failing to pronounce a term of postrelease supervision—had been corrected (see Lingle, 16 NY3d at 634-635). Similarly, here, the Appellate Division’s *674correction of the illegality precludes any additional modification of defendant’s now-lawful sentence.

People v LaSalle (95 NY2d 827 [2000]), cited by the majority, actually highlights the problem presented here. There, defendant was improperly sentenced to consecutive terms of imprisonment for offenses that arose from a single incident. The Appellate Division modified defendant’s sentence to correct the error by directing that the sentences were to run concurrently (see LaSalle, 95 NY2d at 828). When the People appealed, arguing that the only corrective action available to the Appellate Division was remittal to the trial court for resentencing, we observed that CPL 470.20 allowed the Appellate Division to choose either to remit or to impose its own legal sentence (see LaSalle, 95 NY2d at 829). Here, by contrast, the Appellate Division order seeks both to correct the illegality in defendant’s sentence and to remit to the trial court for further resentencing. This is not permitted.

Therefore, I would modify the Appellate Division order by striking the remittal to Supreme Court for resentencing.

Judges Graffeo, Read and Smith concur with Judge Pigott; Chief Judge Lippman dissents in part and votes to modify in a separate opinion in which Judges Ciparick and Jones concur.

Order affirmed.

Although it is well settled that courts have the authority to correct mistakes or clerical errors, “a court cannot, in the guise of correcting an error, change or amend a sentence which is not defective. Indeed[,] . . . that is expressly prohibited by CPL 430.10” (People v Minaya, 54 NY2d 360, 364 [1981] [citation omitted]).