Opinion
February 17, 1981
Appeal by defendant, as limited by his brief, from a resentence of the Supreme Court, Kings County, imposed July 29, 1980, which vacated a previously imposed concurrent sentence, upon defendant's 1979 conviction of burglary in the second degree, and resentenced him to a consecutive term of imprisonment. Resentence affirmed. Under the circumstances of the instant case, the sentencing court had the power to act sua sponte to vacate the previously imposed illegal sentence and to resentence the defendant in accordance with the promise made at the change of plea and in accordance with the dictates of subdivision 2-a of section 70.25 Penal of the Penal Law (see People ex rel. Sedotto v Jackson, 283 App. Div. 540, revd on other grounds 307 N.Y. 291; People ex rel. Miresi v. Murphy, 253 App. Div. 441, mot for lv to app den 278 N.Y. 741; People ex rel. Mendola v. Brophy, 237 App. Div. 529; People ex rel. Friedman v. Hayes, 172 App. Div. 442; see, also, People v. Bartley, 47 N.Y.2d 965; Matter of Wadsworth v Mogavero, 71 A.D.2d 157; People v. Gillette, 33 A.D.2d 587; People v. Sanacory, 248 App. Div. 631, affd 272 N.Y. 573; Ann., 168 ALR 706; cf. People v. Minaya, 78 A.D.2d 358; People v. Askew, 66 A.D.2d 710). CPL 440.20 and 440.40 Crim. Proc. are not to the contrary (cf. CPL 430.10). We have considered defendant's remaining contentions and find them to be lacking in merit. Damiani, J.P., Gulotta, O'Connor and Thompson, JJ., concur.