        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

251
KA 11-02122
PRESENT: SMITH, J.P., CENTRA, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY N. OTT, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered June 28, 2011. Defendant was
resentenced upon his conviction of murder in the second degree.

     It is hereby ORDERED that the resentence so appealed from is
unanimously affirmed.

     Memorandum: In 2006, defendant was convicted upon a jury verdict
of murder in the second degree (Penal Law § 125.25 [1]) and assault in
the first degree (§ 120.10 [1]). We vacated the sentence imposed on
the murder count and remitted the matter to County Court for
resentencing on that count “ ‘[b]ecause of the discrepancy between the
sentencing minutes and the certificate of conviction’ with respect to
that count” (People v Ott, 83 AD3d 1495, 1497, lv denied 17 NY3d 808).
Following our remittal, the matter was transferred from County Court
to Supreme Court, and defendant was resentenced. Defendant now
appeals from the resentence.

     Contrary to defendant’s contention, Supreme Court did not err in
failing to conduct a new sentencing proceeding on the murder count.
Although, in general, a defendant upon being resentenced is entitled
to a new sentencing proceeding at which the defendant and his attorney
have the right to be present and to be heard regarding resentencing
(see generally People v Green, 54 NY2d 878, 880; People v Bibbs, 17
AD3d 170, 170), the resentencing here concerned only a single count of
the indictment, and its purpose was to correct a purely clerical error
that had occurred when the minimum period of incarceration on that
count was misrecorded in the certificate of conviction (see People v
Reed, 85 AD3d 824, 824, lv denied 17 NY3d 861; see generally People v
Sparber, 10 NY3d 457, 472). Thus, the “resentencing [wa]s limited to
remedying this specific [clerical] error” (People v Lingle, 16 NY3d
                            -2-                  251
                                           KA 11-02122

621, 635).




Entered:   March 20, 2015         Frances E. Cafarell
                                  Clerk of the Court
