PEOPLE v. LEO (2008)

Appeal from a judgment of the Justice Court of the Town of Southampton, Suffolk County (Deborah Kooperstein, J.), rendered June 9, 2005, and from an amended judgment of the same court, rendered April 19, 2006.   The judgment convicted defendant, upon his plea of guilty, of violating section 330-177A of the Code of the Town of Southampton, and sentenced him to a four month conditional discharge and a $500 fine.   The amended judgment resentenced defendant to a $20,000 fine upon a finding that defendant violated a condition of his sentence of conditional discharge.

Amended judgment reversed on the law and resentence vacated.

Judgment of conviction modified on the law by vacating the sentence imposed and remitting the $500 fine, if paid;  as so modified, judgment affirmed, and matter remanded to the court below for further proceedings in accordance with the decision herein.

Pursuant to a negotiated plea and sentencing agreement, defendant entered a guilty plea to a land use violation (Code of the Town of Southampton § 330-177A) and was sentenced to a four-month conditional discharge, the sole conditions thereof being that within that period he cure the use violation or obtain a certificate of occupancy for the new use.   Defendant failed to fulfill either condition and upon the People's application, filed several weeks after the conditional discharge period expired, the court declared defendant delinquent (CPL 410.30).   Although the record is unclear as to the subsequent events, upon defendant's plea to the declaration of delinquency, the Town Attorney demanded that a $1,000 fine be imposed for every week that elapsed following the expiration of the conditional discharge period, pursuant to section 330-186B of the Code of the Town of Southampton, which provides that each week's violation shall constitute a separate, additional violation.   The court resentenced defendant to a $20,000 fine.

 The record shows that the declaration of delinquency was untimely. Such a declaration may be brought only “during the period of a sentence of ․ conditional discharge” (CPL 410.30), here, within four months of sentencing.   Although the People contend that the period of conditional discharge was for a year, as statutorily mandated (Penal Law § 65.05[3][b] ), the court itself, in its order rejecting, as untimely, defendant's motion to modify the terms of the conditional discharge (see CPL 410.20), declared the period of sentence to be four months.   A declaration of delinquency brought after a period of conditional sentence has expired is “invalid” (People v. Lee, 2 A.D.3d 878, 879, 770 N.Y.S.2d 412 [2003] ) and the court was “powerless” to revoke the sentence on this basis (People v. Montgomery, 115 A.D.2d 102, 103, 494 N.Y.S.2d 913 [1985] ).   Moreover, an untimely declaration of delinquency is of nonwaivable jurisdictional dimensions, particularly in light of Penal Law § 65.15(2), which only preserves the court's jurisdiction over a term of probation or conditional discharge upon the timely filing of a declaration of delinquency.

 As the People concede, a conditional discharge of four months is not an authorized sentence (Penal Law § 65.05[3][b] ), and as a general rule, “when [an] unlawful sentence is the product of a negotiated plea agreement, and the sentencing court is unable to fulfill its sentence promise due to the illegality of that sentence, the appropriate remedy is to give the defendant the opportunity to either accept an amended lawful sentence or withdraw his plea of guilty and be restored to pre-plea status” (People v. Hollis, 309 A.D.2d 764, 765, 765 N.Y.S.2d 67 [2003];  see also People v. Ingoglia, 305 A.D.2d 1002, 1003, 759 N.Y.S.2d 620 [2003];  People v. Martin, 278 A.D.2d 743, 744, 718 N.Y.S.2d 445 [2000] ).   We note that where, as here, an ordinance provides that the continuance of a violation over given periods of time permits each period to be punished as a separate offense, it is necessary that the accusatory instrument charging the violation allege, as a separate count, every period of time the violation persisted if multiple punishments are to be imposed (People v. Fremd, 41 N.Y.2d 372, 393 N.Y.S.2d 331, 361 N.E.2d 981 [1977];  People v. Melchner, 4 Misc.3d 132(A), 2004 N.Y. Slip Op. 50727 [U], 2004 WL 1563231 [App. Term, 9th & 10th Jud. Dists. 2004];  People v. Otto, 2003 N.Y. Slip Op. 51181[U], 2003 WL 21974317 [App. Term, 9th & 10th Jud. Dists. 2003];  People v. Simoneau, 2003 N.Y. Slip Op. 51338[U], 2003 WL 22469717 [App. Term, 9th & 10th Jud. Dists. 2003] ).   Here, the accusatory instrument alleged a single violation of the ordinance, foreclosing sentencing for other than that conduct.   Accordingly, should there be a resentencing, the maximum sentence that may be imposed is a $1,000 fine and six months' imprisonment.

We find defendant's remaining claims without merit (People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000];  People v. Allen, 92 N.Y.2d 378, 385, 681 N.Y.S.2d 216, 703 N.E.2d 1229 [1998];  People v. Sylla, 7 Misc.3d 8, 792 N.Y.S.2d 764 [App. Term, 2d & 11th Jud. Dists. 2005] ), unpreserved for appellate review (People v. Douglas, 94 N.Y.2d 807, 808, 701 N.Y.S.2d 305, 723 N.E.2d 54 [1999];  People v. Mills, 45 A.D.3d 892, 894, 844 N.Y.S.2d 492 [2007];  People v. Kyem, 272 A.D.2d 136, 708 N.Y.S.2d 613 [2000] ), or academic in light of the foregoing.