Opinion
251 KA 11-02122
03-20-2015
The PEOPLE of the State of New York, Respondent, v. 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.
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.
PRESENT: SMITH, J.P., CENTRA, CARNI, AND SCONIERS, JJ.
Opinion
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 A.D.3d 1495, 1497, 921 N.Y.S.2d 450, lv. denied 17 N.Y.3d 808, 929 N.Y.S.2d 568, 953 N.E.2d 806 ). 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 N.Y.2d 878, 880, 444 N.Y.S.2d 908, 429 N.E.2d 415 ; People v. Bibbs, 17 A.D.3d 170, 170, 792 N.Y.S.2d 327 ), 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 A.D.3d 824, 824, 924 N.Y.S.2d 807, lv. denied 17 N.Y.3d 861, 932 N.Y.S.2d 26, 956 N.E.2d 807 ; see generally People v. Sparber, 10 N.Y.3d 457, 472, 859 N.Y.S.2d 582, 889 N.E.2d 459 ). Thus, the “resentencing [wa]s limited to remedying this specific [clerical] error” (People v. Lingle, 16 N.Y.3d 621, 635, 926 N.Y.S.2d 4, 949 N.E.2d 952 ).
It is hereby ORDERED that the resentence so appealed from is unanimously affirmed.