Campbell v. Pesce

• Decision Date: 03 November 1983
• Citation: 60 N.Y.2d 165,456 N.E.2d 806,468 N.Y.S.2d 865
• Parties: , 456 N.E.2d 806 In the Matter of Lawrence CAMPBELL, Appellant, v. Michael PESCE, as Criminal Court Judge of City of New York, County of Kings, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 865

468 N.Y.S.2d 865

60 N.Y.2d 165, 456 N.E.2d 806

In the Matter of Lawrence CAMPBELL, Appellant, v. Michael PESCE, as Criminal Court Judge of City of New York, County of Kings, et al., Respondents.

Court of Appeals of New York.

Nov. 3, 1983.

[456 N.E.2d 807] [60 N.Y.2d 166] Michele Maxian, Caesar D. Cirigliano and Bennett M. Lincoff, New York City, for appellant

[60 N.Y.2d 167] Elizabeth Holtzman, Dist. Atty. (Sarah G. Noll and Barbara D. Underwood, Asst. Dist. Attys., of counsel), respondent pro se, and for Michael Pesce, respondent.

OPINION OF THE COURT

KAYE, Judge.

After sentence has commenced, a court which has accepted a plea in violation of the Criminal Procedure Law may not vacate the illegal plea and reinstate the original charges.

Appellant was arraigned on a felony complaint charging first degree robbery and criminal use of a firearm in the first degree. According to the complaint, appellant, acting in concert with another person, "forcibly stole certain property" from the victim and "displayed what appeared to be a handgun." The prosecutor moved to reduce the charges to the misdemeanor offenses of petit larceny and fourth degree weapon possession. The court and the prosecutor then accepted appellant's plea of guilty to petit larceny in satisfaction of the charges. Appellant was immediately sentenced to nine months in jail and commenced serving his sentence.

Two weeks later, the People moved to vacate appellant's conviction on the ground that the charges had been reduced in violation of CPL 180.50 (subd. 2, par. [b], cl. [ii] ), which prohibits reduction of an armed felony to a misdemeanor charge unless the court first determines that there was no reasonable cause to believe that the accused committed an armed felony. The court granted the motion and reinstated the original charges, noting that it had in fact made no inquiry as to whether the case involved an armed felony. Appellant thereafter commenced this article 78 proceeding seeking to prohibit further prosecution on the felony charges and to have his original plea and sentence reinstated. The court denied the application and the Appellate Division, 88 A.D.2d 944, 451 N.Y.S.2d 181, affirmed.

Although acceptance of the plea was illegal, there exists no statutory authorization for the court to vacate the plea and sentence at the prosecutor's request and reinstate the original charges. The District Attorney cited CPL 440.10 (subd. 1, par. [a] ) ¹ and 440.40 (subd. 1) ² in support of his application to vacate both the plea and the sentence. Neither provision empowered the court to grant the motion. CPL 440.10 (subd. 1, par. [a] ) permits the court to vacate a judgment only upon motion of the defendant. CPL 440.40 (subd. 1) allows the court to vacate a sentence for illegality on motion of the People within one year of its imposition. But here it is not claimed that the sentence was illegal, and in any event this section confers no power to set aside the plea and reinstate the original charges. Indeed, subdivision 5 of the same section specifies that an order entered pursuant to the People's motion "does not affect the validity or status of the underlying conviction". Nor does any other provision of the CPL enable the People to upset the plea.

Within the statutory framework, we have recognized the inherent power of a court to correct its own error in connection with accepting a plea or imposing sentence. In People v. Minaya, 54 N.Y.2d 360, 445 N.Y.S.2d 690, 429 N.E.2d 1161 cert. den. 455 U.S. 1024, 102 S.Ct. 1725, 72 L.Ed.2d 144, we upheld the court's correction of a sentence where the record established that there had been patent clerical error in imposing the negotiated term. Again in People v. Wright, 56 N.Y.2d 613, 450 N.Y.S.2d 473, 435 N.E.2d 1088, we recognized the inherent power of a court to correct its error in imposing sentence where the record showed that in sentencing the defendant to a concurrent, rather than consecutive, sentence, the Trial Judge had merely misspoken. In both...