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

528
OP 16-01908
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND SCUDDER, JJ.


IN THE MATTER OF STEVEN R. BRANDON, PETITIONER,

                    V                             MEMORANDUM AND ORDER

HON. CRAIG J. DORAN, RESPONDENT.


LAW OFFICE OF JAMES L. RIOTTO, II, ROCHESTER (LINDSEY M. PIEPER OF
COUNSEL), FOR PETITIONER.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JASON A. MACBRIDE
OF COUNSEL), FOR RESPONDENT.


     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.

     Memorandum: On June 1, 2016, petitioner was sentenced in Ontario
County Court to a definite term of incarceration of 30 days, along
with fines, surcharges and the suspension of his driver’s license.
Respondent, the sentencing judge (Judge), did not impose a period of
probation. Nevertheless, on that same date, but outside of
defendant’s presence, the Judge signed an order directing that
petitioner serve a five-year period of probation. On June 16, 2016,
while incarcerated, petitioner was presented with the order, which he
signed, indicating that he “agree[d] to comply” with its terms.
Petitioner was released from incarceration on June 30, 2016 and, after
his time to file a direct appeal had expired, he was directed to
report to the probation department to begin his probation supervision.
Petitioner then commenced this proceeding seeking an order prohibiting
the Judge from adding a period of probation to the sentence. We agree
with petitioner that the Judge exceeded his authority in modifying the
terms of petitioner’s sentence outside of petitioner’s presence, and
we therefore grant the petition.
                                 -2-                           528
                                                         OP 16-01908

     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 NY2d 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).

     We further conclude that petitioner cannot now be resentenced.
It is well settled that, “where ‘a defendant is released from custody
and returns to the community after serving the period of incarceration
that was ordered by the sentencing court, and the time to appeal the
sentence has expired or the appeal has been finally determined,’ a
legitimate expectation of the original sentence’s finality arises and
double jeopardy precludes the modification of that sentence to include
a period of” probation (People v Cass, 91 AD3d 978, 978, quoting
People v Williams, 14 NY3d 198, 219, cert denied 562 US 947; cf.
Lingle, 16 NY3d at 630-631). Here, as in Williams, petitioner has
completed serving the period of incarceration and has been released
from custody. Petitioner did not file a notice of appeal, and the
time within which to do so has expired (see CPL 460.10 [1] [a]).
Although petitioner, as of this writing, could still move for an
extension of time to take an appeal (see CPL 460.30 [1]), he cannot be
forced to do so. We thus conclude that petitioner’s sentence is
“beyond the court’s authority,” and an additional component to that
sentence cannot be imposed (Williams, 14 NY3d at 217).




Entered:   April 28, 2017                      Frances E. Cafarell
                                               Clerk of the Court
