Opinion
201 KA 17-02131
03-18-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. KEYONI ADAMS, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, JJ.
Appeal from a judgment of the Monroe County Court (Stephen T. Miller, A.J.), rendered November 16, 2017. The judgment convicted defendant upon a plea of guilty of arson in the fourth degree.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Monroe County Court for resentencing in accordance with the following memorandum: On appeal from a judgment convicting her upon her plea of guilty of arson in the fourth degree (Penal Law § 150.05 [1]), defendant challenges aspects of her sentence. We agree with the People, however, that defendant's challenges are academic because the sentence must be vacated on account of County Court's failure to properly pronounce the sentence during the sentencing proceeding (see generally People v Cleveland, 177 A.D.3d 1382, 1382-1383 [4th Dept 2019]).
CPL 380.20 provides that a court "must pronounce sentence in every case where a conviction is entered." That statutory requirement is "unyielding" (People v Sparber, 10 N.Y.3d 457, 469 [2008]; see People v Belcher-Cumba, ___ A.D.3d ___, ___, 2022 NY Slip Op 00691, *1 [3d Dept 2022]; Cleveland, 177 A.D.3d at 1383). A violation of CPL 380.20 "may be addressed on direct appeal notwithstanding [any] valid waiver of the right to appeal or the defendant's failure to preserve the issue for appellate review" (Cleveland, 177 A.D.3d at 1383; see People v Guadalupe, 129 A.D.3d 989, 989 [2d Dept 2015]; see generally People v Fuller, 57 N.Y.2d 152, 156 [1982]). "When the sentencing court fails to orally pronounce a component of the sentence, the sentence must be vacated and the matter remitted for resentencing in compliance with the statutory scheme" (Cleveland, 177 A.D.3d at 1383; see People v Petrangelo, 159 A.D.3d 1559, 1560 [4th Dept 2018]).
Here, although the certificate of conviction states that defendant was sentenced to a split sentence of a definite term of time served in jail and five years of probation, which is consistent with the sentencing promise made during the plea proceeding, the court failed to orally pronounce during the sentencing proceeding the definite term component of defendant's sentence as required by CPL 380.20 (see People v Brady, 195 A.D.3d 1545, 1546 [4th Dept 2021], lv denied 37 N.Y.3d 970 [2021]; People v Tyrek M., 183 A.D.3d 915, 915-916 [2d Dept 2020]; Cleveland, 177 A.D.3d at 1383). We therefore modify the judgment by vacating defendant's sentence, and we remit the matter to County Court for resentencing (see Brady, 195 A.D.3d at 1546; Cleveland, 177 A.D.3d at 1383; Petrangelo, 159 A.D.3d at 1560). Upon remittal, the court should address defendant's assertion that her probationary term must be reduced by the period of time served in jail (see Penal Law §§ 60.01 [2] [d]; 65.00 [2]; 70.30 [3]; People v Zephrin, 14 N.Y.3d 296, 299-300 [2010]) and any objections to the conditions of probation (see generally § 65.10 [1]; People v Letterlough, 86 N.Y.2d 259, 265 [1995]).