Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 2, #8©

Issue: To what extent does a sentencing court have the power to change a sentence already imposed?

IN sentencing a defendant, it may be necessary for the judge to consider several aspects of that sentence: jail time, probation, surcharge, and restitution, among others. Not surprisingly, judges sometimes err from what they intended to impose. Or they have second thoughts. When this happens, may the court afterwards revise the sentence?


The main section to consider is CPL 430.10, entitled "Sentence of imprisonment not to be changed after commencement":

"Except as otherwise specifically authorized by law, when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced."

Consider restitution as an example. When the court fails to impose restitution at the time of sentencing, may it do so thereafter? According to the Third and Fourth Departments, no. Even where the original sentence was probation (and hence, revocable—see below), where the court failed to order restitution at the time of the original sentencing, it may not thereafter. People v Kevin C., 265 AD2d 828, 697 NYS2d 217 (4th Dept 1999); People v Dickson, 260 AD2d 931, 690 NYS2d 282 (3d Dept 1999); Handling a Criminal Case in New York, 21:151 (2000-2001 ed.).

Also, Youthful Offender status. Once the sentence has been imposed, either granting or denying the status of Youthful Offender, the trial court may not later change that, such as upon a violation of probation. People v Calderon, 79 NY2d 61, 580 S2d 163 (1992); People v Ferguson, 119 AD2d 338, 507 S2d 622 (1st Dept 1986). Cf. People v Larmond, 139 AD2d 668, 527 NYS2d 799 (2d Dept 1988); People v Minott, 254 AD2d 306, 680 S2d 104 (2d Dept 1998); Handling, 20:81.


CPL 430.10 refers to a situation "otherwise specifically authorized by law."One example is an intermittent jail sentence. Along with conditional discharge and probation, such a sentence is revocable. See Penal Law 60.01(2); CPL 410.20; Handling, 21:2.

Also, an Order of Protection may be imposed even though it was not part of the original plea bargain. People v Roman, 243 AD2d 831, 665 NYS2d 352 (3d Dept 1997); Handling, 21:170. And, the terms of an Order of Protection may be modified after sentence. See CPL 530.12, 530.13(5); People v Garris, 159 Misc2d 586, 605 NYS2d 818 (Dist Ct 1998); Handling, 21:85.


Some decisions refer to the "inherent power of the court," but what does this encompass? Clearly, a court has inherent authority to sua sponte correct a patent clerical error. People v Minaya, 54 NY2d 360, 445 NYS2d 690 (1981), cert denied 455 US 1024; see also People v Vasquez, 88 NY2d 561, 647 NYS2d 697 (1st Dept 1990); Handling, 21:189.

The court also has the inherent power to vacate a plea or conviction that was obtained by fraud. Handling, 17:85. However, the court's inherent power does not extend to the situation where a plea occurred that was in violation of the CPL and the defendant had been sentenced. Matter of Campbell v Pesce, 60 NY2d 165, 468 NYS2d 865 (1983).

Where the court does have the power to vacate, but the sentence would violate a plea agreement, the court must afford the defendant the right to withdraw the plea. People v Selikoff, 35 NY2d 227, 360 NYS2d 623 (1974), cert denied 419 US 1122.


CPL 430.10, while stating the basic rule, qualifies it with "and such sentence is in accordance with law . . .." So, if a sentence is improper—e.g., the sentence must be consecutive--DOCS may notify the sentencing judge of the apparently illegal sentence. The court's inherent power is equivalent to a DA's CPL 440.40 motion to set aside the sentence, which has a 1-year time limit. People v DeValle, 254 AD2d 150, 681 NYS2d 487 (1st Dept 1998), aff'd 94 NY2d 870, 704 NYS2d 924 (2000); see, Handling a Criminal Case in New York, 21:189, 22:75.


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