Opinion
IND. NO. 4404/2010
08-02-2014
THE PEOPLE OF THE STATE OF NEW YORK v. OBAFAMI ADEDAPO, Defendant.
MOTION TO VACATE SENTENCE DECISION AND ORDER
The defendant moves, pro se, to set aside his sentence pursuant to Criminal Procedure Law § 440.20, arguing that the sentence imposed on him is illegal. The People oppose the defendant's motion.
On May 22, 2012, Police Officers Hernandez and Calderon were standing in the lobby of the building located at 301 Sutter Avenue in Brooklyn. The officers saw the defendant approach the building, but then fiddle with his pockets, turn, and walk away when he saw the officers. When the officers then saw the defendant attempt to enter the building through the back doors, the officers asked the defendant what he was doing. The defendant ran away. As the officers chased the defendant, they saw the defendant touch his waistband and then saw a handgun fall from the defendant's waistband to the ground. Officer Hernandez recovered the gun. Officer Calderon continued to chase the defendant, who entered the lobby of 301 Sutter Avenue and ran into an elevator. The officers used a fire key to recall the elevator to the lobby. The defendant was still in the elevator. When the officers attempted to handcuff the defendant, he kicked his legs and flailed his arms in order to prevent the officers from arresting him. Thereafter, the officers placed the defendant inside a police car, where he kicked out the back window of the car, causing the window to shatter, and causing injuries to the officers standing nearby.
For these acts, the defendant was charged under Kings County Indictment Number 4404/2010 with one count of Criminal Possession of a Weapon in the Second Degree (P.L. § 256.03[3]), one count of Criminal Possession of a Weapon in the Fourth Degree (P.L. § 256.01[1]), two counts of Assault in the Second Degree (P.L. § 120.05[3]), two counts of Assault in the Third Degree (P.L. § 120.00[1]), one count of Resisting Arrest (P.L. § 205.30), and one count of Criminal Mischief in the Fourth Degree (P.L. § 145.00[1]).
On November 27, 2012, after a jury trial, the defendant was convicted of Criminal Mischief in the Fourth Degree and Resisting Arrest, but acquitted of Assault in the Second Degree. The jury was unable to reach a verdict on the counts of Criminal Possession of a Weapon in the Second and Fourth Degrees, and the court declared a mistrial with respect to those counts. On December 24, 2012, before a retrial, the defendant plead guilty to Criminal Possession of a Weapon in the Fourth Degree.
For this conviction, the defendant was sentenced to one year in jail on the count of Criminal Possession of a Weapon in the Fourth Degree, to run consecutive to concurrent sentences of six months in jail on the each of the counts of Criminal Mischief in the Fourth Degree and Resisting Arrest, for an aggregate sentence of one and one-half years in jail.
According to New York City Department of Correction, the defendant completed his sentence on November 22, 2013 and was released from jail.
In his current pro se motion to set aside the sentence, the defendant argues that the court improperly ordered the one-year sentence on the count of Criminal Possession of a Weapon in the Fourth Degree to run consecutive to the six-month sentences on the remaining counts because the court was not authorized under P.L. § 70.25 to sentence him to an aggregate sentence of more than one year for offenses which were committed as part of a single incident or transaction.
As a general principle, a sentence cannot be changed once a defendant begins to serve it if the "sentence is in accordance with law." See C.P.L. § 430.10; People v. Williams, 14 N.Y.3d 198, 212 (2010). However, it is well established that courts have "inherent power to correct their records, where the correction relates to mistakes or errors, which may be termed clerical in nature, or where it is made in order to conform the record to the truth." People v. Gammon, 19 N.Y.3d 893, 895 (2012); People v. Williams, 14 N.Y.3d at 212. The Court of Appeals of New York has recognized that courts can exercise this authority "in circumstances where it clearly appears that a mistake or error occurred at the time a sentence was imposed." People v. Gammon, 19 N.Y.3d at 895, quoting People v. Richardson, 100 N.Y.2d 847 (2003).
Here, there is no evidence that there was a mistake or an error regarding the sentence. Penal Law Section 70.25(3) states that "[w]here consecutive definite sentences of imprisonment...are imposed on a person for offenses which were committed as parts of a single incident or transaction, the aggregate of the terms of such sentences shall not exceed one year." (See PL § 70.25[3]). This court does not agree with the defendant that he was sentenced for offenses which were committed as parts of a single incident or transaction. The act of possessing a weapon was an act separate from the act of resisting arrest and kicking out the back window of a police vehicle. Accordingly, the defendant was sentenced in accordance with Penal Law Section 70.25(1) which states, with exceptions not relevant here, that "when multiple sentences of imprisonment are imposed on a person at the same time...the... sentences imposed by the court shall run either concurrently or consecutively with respect to each other...in such manner as the court directs at the time of sentence." (See PL § 70.25[1]: People v. Booth, 119 A.D.2d 758, 759). When, as here, the defendant is subject to sentence at the same time upon conviction of separate crimes, the provisions of Penal Law Section 70.25(1) apply and consecutive sentences may be imposed. Therefore, the sentence imposed upon the defendant was legal.
Wherefore, the defendant's motion is denied in its entirety. The foregoing constitutes the decision and order of the court. Dated: Brooklyn, New York
June 2, 2014
/s/_________
DANNY K. CHUN, J.S.C
You are advised that your right to an appeal from the order determining your motion is not automatic except in the single instance where the motion was made under CPL §440.30(1-a) for forensic DNA testing of evidence. For all other motions under Article 440, you must apply to a Justice of the Appellate Division for a certificate granting leave to appeal. This application must be filed within 30 days after your being served by the District Attorney or the court with the court order denying your motion. The application must contain your name and address, indictment number, the questions of law or fact which you believe ought to be reviewed and a statement that no prior application for such certificate has been made. You must include a copy of the court order and a copy of any opinion of the court. In addition, you must serve a copy of your application on the District Attorney. APPELLATE DIVISION, 2ND Department
45 Monroe Place
Brooklyn, NY 11201
Kings County Supreme Court
Criminal Appeals
320 Jay Street
Brooklyn, NY 11201
Kings County District Attorney
Appeals Bureau
350 Jay Street
Brooklyn, NY 11201