People v. DeValle

Appellate Division of the Supreme Court of New York

People v. DeValle

254 A.D.2d 150, 681 N.Y.S.2d 487, 1998 N.Y. App. Div. LEXIS 10994

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 20, 1998

StatusPublished

This text of 254 A.D.2d 150 (People v. DeValle) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. DeValle, 254 A.D.2d 150, 681 N.Y.S.2d 487, 1998 N.Y. App. Div. LEXIS 10994 (N.Y. Ct. App. 1998).

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Opinion

Judgment, Supreme Court, New York County (Felice Shea, J.), rendered February 7, 1997, convicting defendant, upon his plea of guilty, of robbery in the third degree, and resentencing him, as a second felony offender, to a term of 2 to 4 years, consecutive to the undischarged portion of another sentence, unanimously affirmed.

Defendant was properly resentenced. The court’s sua sponte restoration of the case to the calendar for resentencing after the Department of Correction informed the court that the original concurrent sentence was illegal was the equivalent of a proceeding pursuant to CPL 440.40 to set aside the sentence. Although, as a result of delays attributable to defendant, the actual resentencing did not occur until approximately 15 months after the original sentence was imposed, the court’s sua sponte action of recalendaring the case was within the one-year time limit contained in CPL 440.40 (1). Therefore, the court had inherent power to set aside the sentence as illegal, notwithstanding the absence of clerical error (see, People v Williams, 87 NY2d 1014; Matter of Kisloff v Covington, 73 NY2d 445, 452; compare, People v Riggins, 164 AD2d 797). Concur— Nardelli, J. P., Wallach, Tom and Andrias, JJ.

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Judgment, Supreme Court, New York County (Felice Shea, J.), rendered February 7, 1997, convicting defendant, upon his plea of guilty, of robbery in the third degree, and resentencing him, as a second felony offender, to a term of 2 to 4 years, consecutive to the undischarged portion of another sentence, unanimously affirmed.

Defendant was properly resentenced. The court’s sua sponte restoration of the case to the calendar for resentencing after the Department of Correction informed the court that the original concurrent sentence was illegal was the equivalent of a proceeding pursuant to CPL 440.40 to set aside the sentence. Although, as a result of delays attributable to defendant, the actual resentencing did not occur until approximately 15 months after the original sentence was imposed, the court’s sua sponte action of recalendaring the case was within the one-year time limit contained in CPL 440.40 (1). Therefore, the court had inherent power to set aside the sentence as illegal, notwithstanding the absence of clerical error (see, People v Williams, 87 NY2d 1014; Matter of Kisloff v Covington, 73 NY2d 445, 452; compare, People v Riggins, 164 AD2d 797). Concur— Nardelli, J. P., Wallach, Tom and Andrias, JJ.

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Bluebook (online)

254 A.D.2d 150, 681 N.Y.S.2d 487, 1998 N.Y. App. Div. LEXIS 10994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-devalle-nyappdiv-1998.

Opinion

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