PEOPLE WURTHMANN v. Robert A. Kirkpatrick, Superintendent, Wende Correctional Facility, Respondent-Respondent. (2009)

Supreme Court erred in converting this proceeding seeking a writ of habeas corpus to a proceeding pursuant to CPLR article 78, and we therefore modify the judgment accordingly (see People ex rel. Smith v. Mantello, 167 A.D.2d 912, 561 N.Y.S.2d 866).   We further conclude on the merits, however, that the court properly dismissed the petition.   Petitioner previously appealed from a judgment convicting him of murder in the second degree (Penal Law § 125.25[2] ) and criminal possession of a weapon in the third degree (§ 265.02 [former (1)] ), and this Court modified the judgment by vacating the sentence and remitted the matter for resentencing (People v. Wurthmann, 26 A.D.3d 830, 831, 808 N.Y.S.2d 521, lv. denied 7 N.Y.3d 765, 819 N.Y.S.2d 890, 853 N.E.2d 261).   The certificate of conviction issued following petitioner's resentencing and the minutes of the resentencing proceeding establish that County Court properly corrected its previous errors in accordance with the express terms of our prior decision by modifying the sentence only to the extent that it was illegal and by otherwise allowing the valid terms of the sentence previously imposed to stand (see generally People v. Carpenter, 19 A.D.3d 730, 731, 796 N.Y.S.2d 730, lv. denied 5 N.Y.3d 804, 803 N.Y.S.2d 33, 836 N.E.2d 1156).

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the first three decretal paragraphs and as modified the judgment is affirmed without costs.

MEMORANDUM: