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A SENTENCE CANNOT BE ALTERED AFTER THE DEFENDANT HAS BEGUN SERVING IT; HERE THE AMENDED UNIFORM SENTENCE AND COMMITMENT FORM DID NOT MERELY CORRECT AN INADVERTENT MISTAKE, IT ALTERED THE SENTENCE AND WAS THEREFORE INVALID (SECOND DEPT). ​

The Second Department, reversing County Court, determined the amended uniform sentence and commitment form which was filed after defendant had begun serving his sentence was invalid. Defendant was originally sentenced for three felonies, two of which were to run consecutively with the third. By operation of law, the two which were to run consecutively with the third ran concurrently with each other. The amended uniform sentence and commitment form purported to have all three sentences run consecutively:

… [T]he defendant correctly contends that his legal sentence was improperly altered, in violation of CPL 430.10, by the amended uniform sentence and commitment form after he began serving his sentence. At sentencing, the County Court identified the sentences which were to run consecutively when it stated that, “[i]n other words, [the attempted murder count] and the [assault count] are to run consecutively to the [intentional murder count].” Contrary to the People’s contention, the court did not, at any point during the sentencing proceeding, specify how the attempted murder count and the assault count were to run with respect to each other. As a result, the sentences imposed on those counts run concurrently as a matter of law (see Penal Law § 70.25[1][a] …). Thus, the original uniform sentence and commitment form reflected the sentence unambiguously imposed by the court during the sentencing proceeding. The record does not indicate that the court misspoke or that its failure to specify that the terms of imprisonment imposed on the intentional murder, attempted murder and assault counts were all to run consecutively to each other was accidental. Therefore, the amended uniform sentence and commitment form effected an improper alteration of the defendant’s sentence in violation of CPL 430.10 … . People v Parsley, 2023 NY Slip Op 02683, Second Dept 5-17-23

Practice Point: Although a court may correct an inadvertent sentencing mistake, it cannot alter a sentence once defendant has begun serving it. Here there was no indication the original sentence, indicating the sentences for two of the three felonies were to run concurrently, was a mistake, so the amended sentence, indicating all three sentences were to run consecutively, was invalid.

 

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