People v. Maurice K----

• Decision Date: 06 March 1984
• Citation: 473 N.Y.S.2d 729,123 Misc. 2d 251
• Parties: PEOPLE of the State of New York v. MAURICE K____, * Defendant. Nassau County Court, Trial Term, Part XII
• Court: New York County Court

Page 729

473 N.Y.S.2d 729

123 Misc.2d 251

PEOPLE of the State of New York v.MAURICE K____, ^*DefendantNassau County Court, Trial Term Part XII.

March 6, 1984.

Matthew Muraskin, Legal Aid Society of Nassau County, Crim. Div. by Michael Wiseman, Mineola, for defendant.

Denis Dillon, Dist. Atty., Nassau County, Mineola by Michael A. Fiechter, for the People.

ALLAN L. WINICK, Judge.

Defendant moves, pursuant to CPL section 440.20 to set aside the sentence imposed upon his adjudication as a youthful offender.Such adjudication followed his plea of guilty to the crimes of Attempted Burglary in the Second Degree and Criminal Trespass in the Second Degree.

To better understand the court's determination, it is necessary to explain the context in which this application arose.

The defendant, having been adjudicated a youthful offender, was on April 18, 1980 sentenced as such to probation for a term of five years with a special condition of 20 days in the Nassau County Correctional Center.Other conditions were imposed, including a direction to make restitution as directed by the Probation Department.

Subsequently, on October 4, 1983, defendant was charged with a violation of the terms of probation, including a charge that defendant failed to make restitution as directed by the Probation Department.

A hearing was conducted by this court when defendant pleaded "not guilty" to the charges.¹

In the midst of the hearing, it appeared from the testimony of a probation officer called as a witness by the People, that the terms of restitution had been adjusted by the Probation Department sometime during the probation period.This prompted the court to read the sentencing minutes and the following was the pertinent part of the sentence imposed, as revealed by the minutes:

"As a special term and condition of the probation on which you have been placed by this court, you will make restitution in the amount and the time and manner as determined by the Probation Department of the County of Nassau."

The court was of the opinion that the sentence was not valid or lawful and adjourned the hearing to give both sides an opportunity to explore that question and also what the effect on the present proceeding would be if the sentence was not valid or lawful.

The precise focus of the apparent invalidity was that part of the sentence which directed restitution, "... in the amount and the time and manner as determined by the Probation Department of the County of Nassau."

The defendant has now moved to set aside that sentence pursuant to CPL section 440.20 on the basis that the sentence was unauthorized, illegally imposed or otherwise invalid.

The issues which the court must now determine are as follows:

1.Was the sentence imposed upon defendant unauthorized, illegally imposed or otherwise invalid as a matter of law because the determination of how restitution was to be made was left to the Probation Department?

2.If it was invalid, does the entire sentence fall or only that part relating to restitution?

3.If the sentence need only be modified, rather than set aside in its entirety, can the defendant be found guilty of violations of the terms of probation not relating to the question of restitution?

4.If the sentence is vacated in its entirety, does the resentence relate back to the date of imposition of the vacated sentence so that the defendant may still be found guilty of those charges of violation of the terms of probation not relating to restitution?

5.If the defendant is resentenced is he entitled to credit for the time served on the invalid sentence including the period of probation?

The sentence to be imposed upon the defendant when adjudicated a youthful offender was any sentence applicable to conviction of an E felony.Penal Law section 60.02, subdivision 2.

The sentence imposed was encompassed in those applicable to E felonies on its surface but was, nevertheless, invalid because, on the subject of restitution, the court must fix the terms of restitution and may not delegate that authority to the Probation Department.People v. Fuller, 57 N.Y.2d 152, 455 N.Y.S.2d 253, 441 N.E.2d 563;People v. Julye, 64 A.D.2d 614, 406 N.Y.S.2d 529;People v. Thigpen, 60 A.D.2d 860, 400 N.Y.S.2d 584;Penal Law section 65.10, subdivision 2 paragraph (g).²

The People candidly concede that the sentencing court was in error in delegating that authority to the Probation Department.

The People, however, contend that the sentence need only be modified to fix the amount and terms of restitution and that the defendant may be found guilty of the violations of the terms of probation not involving restitution.In other words, the District Attorney asserts that the sentence was severable.

The court does not agree.

In People v. Julye, supra, the appellate court in modifying the defendant's sentence, in effect invalidated the prior sentence, imposed restitution but directed the trial court to fix the terms of restitution.Thus the court did not affirm part of a sentence and remit to fix restitution, rather, it changed the entire sentence.

Likewise, in People v. Thigpen, supra, the appellate court remanded for resentencing after reversing the sentence imposed by the trial court to fix the manner of performance as well as to make findings as to the amount of restitution.

Contrary to the contention of the District Attorney, there is no suggestion in People v. Minaya, 54 N.Y.2d 360, 445 N.Y.S.2d 690, 429 N.E.2d 1161, that an invalid sentence can be modified in part, relating only to the invalid part of a sentence.Quite the contrary, where an invalid sentence is imposed, the entire sentence is void and the defendant must be resentenced according to the law.SeePeople v. Harrington, 21 N.Y.2d 61, 64, 286 N.Y.S.2d 477, 233 N.E.2d 456.See also dissenting opinion of Jasen, J. in People v. Yannicelli, 40 N.Y.2d 598, 603, 389 N.Y.S.2d 290, 357 N.E.2d 947.

In Minaya, the trial court at sentencing, intending to honor a plea agreement of imprisonment for a period of zero to eight years, mistakenly sentenced defendant for a period of zero to three years, after acknowledging his adherence to the plea bargain.The Court of Appeals reversed the order of the Appellate Division affirming the sentence of zero to three years to allow the trial court to correct the error.The court stated that CPL section 430.10 refers to limitations on the court's power to change a valid sentence once service of the term has started but does not prohibit mere correction of an error.The dissent terms what the majority did as not merely correcting a clerical error, but does not disagree that only clerical errors can be corrected, otherwise holding that the limitation of 430.10 applies to that case.

The District Attorney argues that the language of Minaya supports the proposition that this court can correct an "erroneous sentence."However, that is not the problem confronting this court inasmuch as "erroneous" and "unauthorized, illegally imposed or otherwise invalid" are not synonymous.Furthermore, the footnote to which the District Attorney refers is in the dissenting opinion of Meyer, J. in Minaya, supra and cannot, in any event, be taken as giving any indication at all that the sentence could be modified in part.

The cases cited by the District Attorney, People v. Wright, 56 N.Y.2d 613, 450 N.Y.S.2d 473, 435 N.E.2d 1088;People v. Fournier, 85 A.D.2d 742, 449 N.Y.S.2d 652, andPeople v. White, 88 A.D.2d 940, 450 N.Y.S.2d 866, similarly involve ministerial errors and not the validity of the sentence.

In People v. Yannicelli, supra, which involved a situation closely resembling the instant case, the Court of Appeals implicitly recognized that an order to resentence invalidates the previous sentence and not merely selected portions of the sentence.In Yannicelli, two defendants were sentenced on their pleas of guilty to two indictments, one dated 1969 and one 1970 to imprisonment and to payment of a fine on one indictment and a concurrent term of imprisonment on the second indictment.The People objected to the sentence and appealed contending that the sentencing court was obligated to conduct a hearing for determination of the defendants' gain prior to imposition of the fine.The Appellate Division agreed and reversed the trial court because the failure to hold the hearing invalidated the sentences as a matter of law and...