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Double Jeopardy Clause And Resentencing On A Violation of Probation


People v. Brian Gammon
2012 NY Slip Op 04667
Decided by New York Court of Appeals
on June 12, 2012

Issue: Whether the resentencing violated Criminal Procedure Law § 430.10 and whether defendants constitutional right under the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution was violated.

Holding: The court held that the resentencing of defendant did not violate the proscriptive language of section 430.10 which 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 period of the sentence has commenced.” Nor did the resentencing violate defendant’s constitutional right against double jeopardy. Un like People v Williams (14 NY3d 198 [2010]), The defendants in Williams served out their terms of imprisonment, and the sentencing judges unambiguously did not pronounce PRS, whereas here, defendant received an ambiguous sentence and did not serve out the original sentence imposed, as reasonably understood by all the parties.

Facts: After being convicted of driving while intoxicated defendant was sentenced to three years of probation and served a 60-day term of incarceration (a condition of probation). Some time thereafter, defendant was found to have violated a condition of probation and, as a result, District Court sought to order an additional 60 days of imprisonment. However, on the actual date of sentencing, the court did not specify that it was ordering an additional term of imprisonment, pronouncing that “[p]ursuant to my promise on June 2, the defendant is terminated from probation. Defendant was immediately taken into the custody of the Suffolk County Jail, but was released the same day because of an erroneous determination crediting him with time served for the original 60-day period of incarceration from the underlying conviction. Days after learning of defendant’s release, the District Court resentenced him to “120 days in jail which is an additional 60 days to the 60 days sentence that he already served.”

Legal Analysis: It is well established that courts have the “inherent power to correct their records, where the correction relates to mistakes or errors, which may be termed clerical in their nature, or where it is made in order to conform the record to the truth”. The courts have recognized that it 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 Richardson, 100 NY2d 847, 850 [2003]). It is evident, on this record that District Court intended to impose an “additional 60 days incarceration” for the violation of probation. Its failure to specify that this was a successive term of imprisonment created the type of ambiguity a court has the inherent authority to clarify.