PEOPLE v. MCCALLUM (2024)

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered August 11, 2021, as amended September 7, 2021 and October 6, 2021, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree and assault in the second degree, and sentencing him to concurrent terms of 5 years, with 3 years’ postrelease supervision on the weapon possession count and 5 years, with 3 years’ postrelease supervision on the assault count, unanimously modified, on the law, to the extent of vacating the sentences and remanding for resentencing, and otherwise affirmed.

As the People concede, defendant's constitutional and statutory rights to be present at sentencing were violated when the court resentenced defendant in his absence to correct a mistake in the term of postrelease supervision imposed (see CPL 380.40[1];  People v. Harris, 79 N.Y.2d 909, 910 [1992]).  Accordingly, the sentence is vacated and the matter is remanded for resentencing with defendant present.  On remand, the court shall also address the discrepancy between the five-year term of postrelease supervision imposed on the weapon possession count at the original sentencing and the three-year term of postrelease supervision count reflected in the amended sentence and commitment sheet dated October 6, 2021 (see People v. Jenkins, 300 A.D.2d 751, 753–754 [3d Dept 2002], lv denied 99 N.Y.2d 615 [2003]).  The remand of the matter for resentencing obviates the need for us to reach the issue of whether the sentence imposed was excessive (see People v. Lee, 84 A.D.2d 699, 699 [1st Dept.1981]).