IN RE: STEVEN R. BRANDON (2017)

MEMORANDUM AND ORDER

Proceeding pursuant to CPLR article 78 (initiated in the Appellate Division of the Supreme Court in the Fourth Judicial Department pursuant to CPLR 506 [b][1] ) to review a determination of respondent.  The determination sentenced petitioner to 30 days' incarceration and 5 years' probation.

It is hereby ORDERED that said petition is unanimously granted without costs and judgment is granted in favor of petitioner as follows:

It is ADJUDGED that Ontario County Court is prohibited from adding a period of probation to petitioner's sentence of incarceration.

While a court possesses the inherent authority to correct a mistake or error in a criminal defendant's sentence (see People v. Gammon, 19 NY3d 893, 895;  People v. Lingle, 16 NY3d 621, 629;  cf.  People v. Richardson, 100 N.Y.2d 847, 849), the process by which a court corrects such an error is by resentencing the defendant (see People v. Sparber, 10 NY3d 457, 469), which must be done in the defendant's presence (see CPL 380.40[1] ).  We thus conclude that the Judge erred in imposing an additional component to the sentence outside of petitioner's presence (see People v. Johnson, 19 AD3d 1163, 1164, lv denied 5 NY3d 829).

Frances E. Cafarell

Clerk of the Court