OPINION On April 16, 2018, this court sentenced defendant Abdul Davis after a jury trial on scores of counts arising out of weapons sales. The most serious count charged Criminal Sale of a Weapon in the First Degree, a class B violent felony. The court pronounced consecutive and concurrent prison terms that aggregated to 35 years, expecting that sentence to be reduced by the Penal Law’s sentence cap provisions to 30 years. It now appears that the court’s structuring of the sentence has instead inadvertently resulted, after application of a sentence cap, in an effective sentence of 25 years. The People ask the court to resentence defendant in a manner that would result in an effective prison term closer to what the court intended. Defendant responds that the current sentence is a legal one, and that a resentencing at this point is impermissible under CPL Section 430.10. That section provides that [e]xcept as otherwise specifically authorized by law, when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or the period of the sentence has commenced. A Defendant led a conspiracy that, through the course of more than a year, delivered over 80 weapons from out of state to an undercover police officer in Manhattan. Defendant in fact delivered those weapons personally, in dozens of transactions between March 2015 and April 2016. Among the guns were several assault weapons, including one accompanied by a “drum” magazine capable of holding 100 bullets. Defendant was convicted by a jury on 116 counts on February 1, 2018. A sentencing proceeding was held on April 16, 2018. This court sentenced defendant to a 25 year prison term on the class B felony charge of Criminal Sale of a Firearm in the First Degree.1 The court also imposed seven 5 year terms on class C felony counts that were to run consecutively to each other but, as a group, concurrently with the 25 year term. Defendant was sentenced to concurrent terms on the remaining 108 counts. As both sides now agree, and as the transcript of the proceeding makes clear, this judge’s intention was to structure the sentences to yield a prison term of 35 years — one that would be reduced to 30 years under Penal Law Section 70.30 (1)(e)(i). This judge believed (despite the People’s expressed doubts) that the 30 year limitation applied because a class B felony count was involved, even though only class C felony counts were in the group on which the consecutive sentences totaling 35 years were imposed. This judge now understands that he was wrong. Correctly understood, Penal Law Section 70.30 (1)(e)(i) sets a 30 year limitation on a prison term if a class B felony sentence is actually among a chain of consecutive sentences totaling over 30 years. When consecutive prison terms are imposed for class C felonies only, the limitation is 20 years, not 30. It does not matter that a prison term for a class B felony was also imposed, if it was not part of the chain of consecutive terms. Unfortunately for the People, in this case the sentences on the seven consecutive class C felony counts must be deemed a sentence of 20 years. That does not end the matter. As noted, defendant was also sentenced on the class B felony count to 25 years, concurrent with the terms imposed on the seven class C felony counts. Defendant’s 25 year sentence for the class B felony is not affected by Penal Law Section 70.30. The People, however, are not content with the five-year reduction from the longer term intended by the court. They now ask that defendant be resentenced, with some prison terms made consecutive to the 25 year term. Among them is a 5 year term for a class C felony that is not part of the chain of seven consecutive five year terms, and that — unlike them — could have been consecutive to the prison term for the class B felony. Adopting the People’s plan would increase defendant’s effective sentence to the 30 year limit that applies where a class B felony is in a chain of consecutive sentences. B But that may not be done. As noted above, CPL Section 430.10 states that [e]xcept as otherwise specifically authorized by law, when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced. Although the sentence imposed by this court has not had its intended effect, it was a sentence “in accordance with law.” That is to say, nothing about this judge’s misunderstanding of the provisions of Section 70.30 rendered illegal the sentence imposed on February 1, 2018. It was perfectly legal to sentence defendant to consecutive terms for his class C felonies, and to a concurrent term for his intimately related class B crime. The People note that appellate decisions recognize an exception to the prohibition against modifying a legal sentence — one that applies when a sentence has been affected by an inadvertent judicial mistake. The People assert that the exception applies here. That claim will be determinative of the issue presented by the People’s motion, and the remainder of this opinion will focus on the case law that recognizes the exception. Analysis should start with People v. Richardson, 100 NY2d 847 (2003). Richardson killed two people in 1995 while on parole from a conviction for a 1979 murder. In 2002 the defendant, who had in the meantime been reincarcerated for the first murder, was sentenced for the 1995 killings to a combined term of 50 years to life. In imposing sentence, however, the court did not specify that Richardson’s sentence would be consecutive to the term in the 1979 case. The Department of Correctional Services properly concluded that, given the lack of an indication whether the sentences were consecutive or concurrent, it had to treat them as concurrent. The defendant was therefore given 15 years credit against the new 50 year minimum term. Upon learning this, the People moved for resentencing. The trial judge granted the motion and made clear that the sentence in the 1995 case would be consecutive to that for the 1979 killing. He did so over the defendant’s objection that this revision of the initial sentence, which had been legal, was unauthorized by law and thus in violation of CPL Section 430.10. The trial judge acknowledged that “resentencing” was not permissible. But he noted that he was simply imposing the original sentence with a correction of his “inadvertent mistake” of being silent on one aspect of it. The Court of Appeals agreed with the defendant that the revision of the sentence was not permissible. Discussing its prior decisions, the Court acknowledged that trial courts have inherent authority to correct “clerical” mistakes and otherwise to “conform the record to the truth.” And they may correct an erroneous departure from the agreed-upon and expected sentence after a guilty plea. But a failure to state that a prison term imposed after trial will be consecutive, resulting by law in its being concurrent, may not be corrected consistently with CPL Section 430.10. People v. Richardson, supra, 100 NY2d at 850-52; see People v. Vasquez (Adkinson), 88 NY2d 561, 581 (1996);2 see also People v. Minaya, 54 NY2d 360, 364 (1981). After Richardson, we must consider the four appellate decisions involving a Manhattan robber named Sergio Rodriguez. In 2008 Rodriguez was convicted for attempted murder, first degree assault, and related robbery charges. The trial court imposed a lengthy sentence combining consecutive and concurrent terms, but erred as a matter of law in choosing which terms could be consecutive to others. The Appellate Division reversed, remitting the case to permit a restructuring of the sentence that would legally achieve the intended aggregate length. People v. Rodriguez, 79 AD3d 644 (1st Dept 2010), aff’d, 18 NY3d 667 (2012). On remand the trial court altered its determination of which counts would be consecutive and which concurrent. In doing so the court specified that certain prison terms would be consecutive to one another, even though they previously had been concurrent. The trial court’s prior decision to make those particular prison terms concurrent had been legal; the sentencing court’s legal error had been in imposing consecutive sentences on other counts. On defendant’s appeal from the new judgment he asserted that the decision now to make these terms consecutive violated the resentencing prohibition in CPL Section 430.10. The Court of Appeals rejected the claim. People v. Rodriguez, 25 NY3d 238 (2015), aff’g 112 AD3d 448 (1st Dept 2013). The Court relied on the circumstance that the sentence revision was not undertaken at the instance of the trial court itself. It was instead the product of a remedial “direct[ion]” that the Appellate Division was empowered to make under the “ broad authority” of CPL Section 470.20. People v. Rodriguez, supra, 25 NY3d at 243; People v. Rodriguez, supra, 18 NY3d at 670-71. The change in the sentence was outside the ban of Section 430.10 because the trial court followed a directive that was “specifically authorized by law.” C This judge concludes that, under the Richardson rule, it may not correct its sentencing error as the People ask. It is true, and defendant concedes, that the court’s intent was to impose a sentence that would be capped at 30 years, and not end after 25. But the court’s mistake is not a clerical error, or one requiring that the record be conformed as to inadvertent misstatements. Nor was any component of the pronounced sentence illegal, a circumstance which has been recognized by the First Department as a potential basis for restructuring the whole of a sentence. People v. Ali, 241 AD2d 321 (1st Dept 1997). The court’s legal misunderstanding about sentencing caps has led to the imposition of a legal sentence which will end after 25 years. See People v. Allende, 78 AD3d 553 (1st Dept 2010) (the trial court did not “misspeak” in imposing sentence, but simply “neglected to structure its sentence so as to carry out its apparent wish….”). If, as shown by Richardson, a failure to pronounce whether terms are consecutive or concurrent cannot be remedied after the fact, a fortiori an express statement on that front should not be subject to reversal. The Rodriguez opinions, properly understood, do not change the calculus. The resentencing in Rodriguez followed an appellate decision authorizing the restructuring of Rodriguez’s prison terms, and the appellate court’s action was itself authorized in the CPL. The change in the sentence was thus “specifically authorized by law” and outside the scope of CPL Section 430.10. That was not the case in Richardson, where the resentencing was at the instance of the trial judge. A resentence on motion of the People in the trial court or of the trial court itself is not “specifically authorized by law” as was the Rodriguez resentence after the appellate remittitur. The distinction is perhaps arbitrary and unsatisfactory. Notably, if this court should ignore Richardson and resentence defendant to the legal term requested by the People, on appeal the Appellate Division should follow Richardson and reverse. Ironically, however, it presumably could do so with a direction that this court impose an appropriate legal sentence — and thus under Rodriguez could authorize the very sentence which led to the reversal. Still, lines must be drawn, and here consideration of Richardson reveals that the facts are not on the People’s side of the line. **** It follows that the People’s motion for resentencing must be denied.
