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People v. Richardson, 2003 N.Y. Int. 114 (Oct. 21, 2003).




Whether a court can modify a defendant's lawful sentence of imprisonment that has already commenced where the sentencing court had not specified whether the sentence should run consecutively or concurrently to an unrelated and undischarged term of imprisonment.


No. Unless the record clearly indicates a judicial oversight or an inadvertent misstatement that creates ambiguity in the record, a defendant's sentence must run concurrently to the previous term of imprisonment where a court does not specify otherwise.


In January 1995, while on parole from a previous sentence of fifteen years to life, Defendant killed two people. The Supreme Court, New York County, sentenced Defendant to two terms of twenty-five years to life for his four convictions of second-degree murder. The sentences for the two convictions for intentional murder were to run consecutively to each other, but concurrently to Defendant's two convictions for felony murder, resulting in a combined term of imprisonment of fifty years to life. Supreme Court did not specify whether the sentence for the 1995 murders would run consecutively or concurrently to the undischarged term of Defendant's previous sentence. The Department of Correctional Services determined under Penal Law § 70.25(1)(a) that the sentences should run concurrently and thus that Defendant should receive credit for time served under his prior sentence against his new sentence of fifty years to life, making him eligible for parole in about thirty-five years. The People moved to reopen the sentencing proceeding so that the Supreme Court could clarify its intentions regarding the previous undischarged sentence. Defendant opposed the motion, arguing that Criminal Procedure Law (CPL) § 430.10 prohibits the modification of a lawful sentence once it has commenced. Stating that their intent had been for Defendant to serve no less than fifty years and that their silence on the issue was an inadvertent mistake, the Supreme Court ordered the new sentence to run consecutively to the prior one, despite CPL § 430.10. The Appellate Division affirmed the conviction and sentence.The Court of Appeals modified the order of the Appellate Division and remitted the matter to Supreme Court.

The Court first noted the exceptions to the CPL § 430.10 rule that a lawful sentence may not be "changed, suspended or interrupted" once it has commenced: a court has the power to correct its records where the correction relates to a clerical mistake or where the correction is made to conform the court's records to what the parties negotiated. The court may also alter a sentence to correct a deviation from what was expected under a plea agreement or to bring an illegal sentence within the legal sentencing range available upon conviction. Further, where the sentencing court is silent on whether a new sentence should run concurrently or consecutively to a previous one, Penal Law § 70.25(1)(a) indicates that the new sentence shall run concurrently to the previous sentence.

Here, the Court found that modification of Defendant's sentence was barred by CPL § 430.10 because there was no indication that the trial court had made a judicial error or inadvertent mistake that created an ambiguity in the record warranting the modification of Defendant's sentence. The sentencing court clearly indicated that the two sentences of twenty-five years to life were to be served consecutively but failed to address the effect of these sentences on Defendant's previous undischarged sentence. Thus the two sentences should run concurrently to each other under the plain language of Penal Law § 70.25(1)(a), Defendant should receive credit for time served for his previous undischarged sentence against his new sentence under Penal Law § 70.30[1] [a], and CPL § 430.10 prohibited the trial court's modification of the sentence because it had already commenced. Thus, the Court modified the order of the Appellate Division.

Prepared by the liibulletin-ny editorial board.