Opinion
09-14-2017
The PEOPLE of the State of New York, Respondent, v. Scott CLAPPER, Appellant.
Barrett D. Mack, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.
Barrett D. Mack, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.
Before: McCarthy, J.P., Garry, Rose, Devine and Clark, JJ.
DEVINE, J.Appeal from a judgment of the Supreme Court (Milano, J.), rendered January 8, 2016 in Schenectady County, which resentenced defendant upon his plea of guilty of the crime of burglary in the third degree.
In 2013, defendant pleaded guilty to burglary in the third degree and was sentenced, as agreed, to a prison term of 1 to 3 years, said sentence running consecutively to the sentences anticipated to be imposed upon a guilty plea that he had recently entered on an unrelated matter in Schoharie County. This Court vacated the sentence imposed in Schenectady County on the ground that Supreme Court lacked the authority to order that the sentence be served consecutively to sentences that had not yet been imposed ( People v. Clapper, 133 A.D.3d 1036, 1036–1037, 19 N.Y.S.3d 194 [2015] ). Upon remittal, Supreme Court imposed the agreed-upon sentence of 1 to 3 years in prison, to be served consecutively to the sentences that had been imposed in Schoharie County. Defendant now appeals.
Defendant was sentenced in Schoharie County to 3 ½ years in prison on a conviction for burglary in the second degree and concurrent prison terms of 2 to 6 years on convictions for burglary in the third degree (three counts), with the latter sentences to be served consecutively to the former (People v. Clapper, 133 A.D.3d 1037, 20 N.Y.S.3d 452 [2015], lv. denied 27 N.Y.3d 995, 38 N.Y.S.3d 105, 59 N.E.3d 1217 [2016] ).
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We affirm. Initially, inasmuch as defendant has been continuously incarcerated since the imposition of the original sentence and was provided an opportunity to address the court prior to resentencing, Supreme Court did not abuse its discretion in imposing the resentence without an updated presentence investigation report (see People v. Kuey, 83 N.Y.2d 278, 282–283, 609 N.Y.S.2d 568, 631 N.E.2d 574 [1994] ; People v. Robinson, 123 A.D.3d 1224, 1228, 999 N.Y.S.2d 555 [2014], lvs. denied 25 N.Y.3d 992, 993, 10 N.Y.S.3d 535, 536, 32 N.E.3d 972, 973 [2015] ). As to the sentence itself, when a defendant is resentenced while subject to a undischarged prison term, the sentencing court may run the sentences consecutively (see Penal Law § 70.25 [1 ]; Matter of Murray v. Goord, 1 N.Y.3d 29, 32, 769 N.Y.S.2d 165, 801 N.E.2d 385 [2003] ). Defendant here was aware of the terms of the sentences that he was to receive in Schoharie County at the time that he entered his plea in this matter, as well as that the sentence in this matter would run consecutively to them. The agreed-upon sentence was a legal one and, in our view, Supreme Court did not abuse its discretion by imposing it upon remittal (see generally People v. Dozier, 109 A.D.3d 838, 839, 971 N.Y.S.2d 128 [2013], lv. denied 22 N.Y.3d 1040, 981 N.Y.S.2d 374, 4 N.E.3d 386 [2013] ).
ORDERED that the judgment is affirmed.
MCCARTHY, J.P., GARRY, ROSE and CLARK, JJ., concur.