PEOPLE v. DeVALLE

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Thomas DeVALLE, a/k/a Dwight Hayes, Defendant-Appellant.

Decided: October 20, 1998

Before NARDELLI, J.P., and WALLACH, TOM and ANDRIAS, JJ. Donald J. Siewert, for Respondent. Elon Harpaz, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Felice Shea, J.), rendered February 7, 1997, convicting defendant, upon his plea of guilty, of robbery in the third degree, and resentencing him, as a second felony offender, to a term of 2 to 4 years, consecutive to the undischarged portion of another sentence, unanimously affirmed.

Defendant was properly resentenced.   The court's sua sponte restoration of the case to the calendar for resentencing after the Department of Corrections informed the court that the original concurrent sentence was illegal was the equivalent of a proceeding pursuant to CPL 440.40 to set aside the sentence.   Although, as a result of delays attributable to defendant, the actual resentencing did not occur until approximately 15 months after the original sentence was imposed, the court's sua sponte action of recalendaring the case was within the one-year time limit contained in CPL 440.40(1).  Therefore, the court had inherent power to set aside the sentence as illegal, notwithstanding the absence of clerical error (see, People v. Williams, 87 N.Y.2d 1014, 643 N.Y.S.2d 469, 666 N.E.2d 174;  Matter of Kisloff v. Covington, 73 N.Y.2d 445, 452, 541 N.Y.S.2d 737, 539 N.E.2d 565;  compare, People v. Riggins, 164 A.D.2d 797, 559 N.Y.S.2d 535).

MEMORANDUM DECISION.