Summary
holding that court had inherent power to resentence defendant who was not a predicate felon, sua sponte, to term of three and one-half to ten and one-half years where originally it had illegally sentenced defendant to three and one-half to seven years as a predicate felon
Summary of this case from People v. ThompsonOpinion
Argued February 15, 1996
Decided March 28, 1996
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Herbert A. Posner, J.
Nancy E. Little, New York City, and Daniel L. Greenberg for appellant.
Richard A. Brown, District Attorney of Queens County, Kew Gardens (William R. Horwitz and Steven J. Chananie of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
On March 17, 1993 defendant pleaded guilty to burglary in the second degree. He admitted that on June 21, 1991, he entered a dwelling without permission while the occupant was sleeping and removed a CD (compact disc) player and a pocketbook. At the time of the plea, defendant responded affirmatively to the court's question as to whether he understood "that you are pleading guilty to a C felony and the law gives me the power to impose a sentence of up to 15 years". On April 9, 1993, the defendant was sentenced to an indeterminate term of 3 1/2 years to 7 years in prison. On April 16, 1993, the court, sua sponte, resentenced the defendant to 3 1/2 to 10 1/2 years in prison, noting that it had incorrectly sentenced defendant as a predicate rather than as a first felony offender. The Appellate Division affirmed following a motion for an amended sentence.
Here, the trial court had the inherent power to correct an illegal sentence ( see, People v Minaya, 54 N.Y.2d 360, cert denied 455 U.S. 1024). Defendant's claim of double jeopardy must also be rejected. That claim would be colorable only if the defendant's sentence had been increased beyond his legitimate expectations of what the final sentence should be. In view of the court's statement during the plea proceedings that the defendant could receive up to 15 years in prison, there could be no expectation of finality on his part with respect to the lesser and illegal sentence ( People v Minaya, 54 N.Y.2d, at 365, supra; United States v DiFrancesco, 449 U.S. 117, 139).
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
Order affirmed in a memorandum.