sentence violation in New York

1992Whether the sentence for a violation of probation should run concurrent or consecutive with the sentence on the underlying crime or crimes which formed the basis for the violation rests in the sound discretion of the sentencing court (People v Chavys, 64 AD2d 962 ).

1984We are not unaware of People v Chavys ( 64 AD2d 962,962-963 ) in which the Appellate Division, First Department, stated, “[w]hether any sentence shall be imposed with respect to violation of probation and whether it will be concurrent or consecutive with the present sentence rests in the sound discretion of the Judge who imposes the sentence for violation of probation, if any.” As the Appellate Division, Third Department, subsequently pointed out in collateral proceedings, however, the case involved parole, not probation (Matter of Chavys v Henderson, 102 AD2d 924 ); hence People v Chavys (sup

2023Therefore, the amended uniform sentence and commitment form effected an improper alteration of the defendant's sentence in violation of CPL 430.10 ( see People v Richardson , 100 NY2d at 853 ; People v Vasquez , 88 NY2d at 581 ).

2023Therefore, the amended uniform sentence and commitment form effected an improper alteration of the defendant's sentence in violation of CPL 430.10 ( see People v Richardson , 100 NY2d at 853 ; People v Vasquez , 88 NY2d at 581 ).

2019A Judge of this Court granted defendant leave to appeal ( 32 NY3d 1004 [2018]).

2018Moreover, although the defendant concedes that he signed a written waiver indicating that he waived the right to appeal the severity of the sentence, a written waiver "is not a complete substitute for an on-the-record explanation of the nature of the right to appeal" ( People v Bradshaw , 76 AD3d 566 , 569, affd 18 NY3d 257 ; see People v Brown , 122 AD3d 133, 139 ).

2016Respondent’s plea admissions that he “had possession of a computer” and he “had a picture of a minor engaged in sexu *23 ally explicit conduct,” read in conjunction with the information to which he pleaded guilty, and his counsel’s concessions at the sentence hearing, corresponds to the New York felony of possessing a sexual performance by a child (Penal Law § 263.16), and therefore is a proper predicate for automatic disbarment under Judiciary Law § 90 (4) (b) and (e) (see Matter of Groezinger, 77 AD3d 117 [2d Dept 2010]; Matter of Lipton, 51 AD3d 207 [2d Dept 2008]; cf. People v Kent, 19 NY3

2016Respondent’s plea admissions that he “had possession of a computer” and he “had a picture of a minor engaged in sexu *23 ally explicit conduct,” read in conjunction with the information to which he pleaded guilty, and his counsel’s concessions at the sentence hearing, corresponds to the New York felony of possessing a sexual performance by a child (Penal Law § 263.16), and therefore is a proper predicate for automatic disbarment under Judiciary Law § 90 (4) (b) and (e) (see Matter of Groezinger, 77 AD3d 117 [2d Dept 2010]; Matter of Lipton, 51 AD3d 207 [2d Dept 2008]; cf. People v Kent, 19 NY3

2016Respondent’s plea admissions that he “had possession of a computer” and he “had a picture of a minor engaged in sexu *23 ally explicit conduct,” read in conjunction with the information to which he pleaded guilty, and his counsel’s concessions at the sentence hearing, corresponds to the New York felony of possessing a sexual performance by a child (Penal Law § 263.16), and therefore is a proper predicate for automatic disbarment under Judiciary Law § 90 (4) (b) and (e) (see Matter of Groezinger, 77 AD3d 117 [2d Dept 2010]; Matter of Lipton, 51 AD3d 207 [2d Dept 2008]; cf. People v Kent, 19 NY3

2015Although defendant failed to preserve this argument by making an appropriate postallocution motion (see People v Neithardt, 127 AD3d 1502, 1503 [2015]; People v Smith, 123 AD3d 1375 , 1376 [2014], lv denied 26 NY3d 935 [2015]), we will exercise our discretion to take corrective action in the interest of justice (see CPL 470.15 [6]).

2007Likewise, under the circumstances presented, defendant’s failure to request a restitution hearing or to object to the sentence does not bar him from challenging the amount of restitution ordered (see People v Dominique, 229 AD2d 719, 720 [1996], affd 90 NY2d 880 [1997]).

1998Defendant’s waiver of his right to appeal encompassed the instant sentence claim and was entered into knowingly, intelligently and voluntarily (see, People v Seaberg, 74 NY2d 1 ).

1998The waiver thus precludes our interest of justice review (see, People v Graham, 220 AD2d 215 , lv denied 87 NY2d 1019 ).

1993In any event, "[wjhether the sentence for a violation of probation should run concurrent or consecutive with the sentence on the underlying crime or crimes which formed the basis for the violation rests in the sound discretion of the sentencing court” (People v Rodriguez, 181 AD2d 515 ; People v Jackson, 106 AD2d 93 ).

1993In any event, "[wjhether the sentence for a violation of probation should run concurrent or consecutive with the sentence on the underlying crime or crimes which formed the basis for the violation rests in the sound discretion of the sentencing court” (People v Rodriguez, 181 AD2d 515 ; People v Jackson, 106 AD2d 93 ).

1991A court has the inherent power to correct its own error in accepting a plea or imposing a sentence when that error is clear from the face of the record, as it is here (see, Matter of Campbell v Pesce, 60 NY2d 165, 168 ; People v Minaya, 54 NY2d 360, 364 , cert denied 455 US 1024 ; Matter of Kisloff v Covington, 73 NY2d 445, 450 ), and the respondent properly recalled the petitioner to vacate the purported resentence and execute the sentence imposed January 4, 1991.

1991A court has the inherent power to correct its own error in accepting a plea or imposing a sentence when that error is clear from the face of the record, as it is here (see, Matter of Campbell v Pesce, 60 NY2d 165, 168 ; People v Minaya, 54 NY2d 360, 364 , cert denied 455 US 1024 ; Matter of Kisloff v Covington, 73 NY2d 445, 450 ), and the respondent properly recalled the petitioner to vacate the purported resentence and execute the sentence imposed January 4, 1991.

1991A court has the inherent power to correct its own error in accepting a plea or imposing a sentence when that error is clear from the face of the record, as it is here (see, Matter of Campbell v Pesce, 60 NY2d 165, 168 ; People v Minaya, 54 NY2d 360, 364 , cert denied 455 US 1024 ; Matter of Kisloff v Covington, 73 NY2d 445, 450 ), and the respondent properly recalled the petitioner to vacate the purported resentence and execute the sentence imposed January 4, 1991.

1991As the court is not threatening to act in excess of its power, a writ of prohibition is not available (see, Matter of Holtzman v Goldman, 71 NY2d 564 ; Matter of Rush v Mordue, 68 NY2d 348, 353 ).

1991As the court is not threatening to act in excess of its power, a writ of prohibition is not available (see, Matter of Holtzman v Goldman, 71 NY2d 564 ; Matter of Rush v Mordue, 68 NY2d 348, 353 ).

1990The sentence claim now advanced is unpreserved for our review (People v Ruz, 70 NY2d 942, 943 ; People v Ingram, 67 NY2d 897, 899 ).

1990The sentence claim now advanced is unpreserved for our review (People v Ruz, 70 NY2d 942, 943 ; People v Ingram, 67 NY2d 897, 899 ).

1984We are not unaware of People v Chavys ( 64 AD2d 962,962-963 ) in which the Appellate Division, First Department, stated, “[w]hether any sentence shall be imposed with respect to violation of probation and whether it will be concurrent or consecutive with the present sentence rests in the sound discretion of the Judge who imposes the sentence for violation of probation, if any.” As the Appellate Division, Third Department, subsequently pointed out in collateral proceedings, however, the case involved parole, not probation (Matter of Chavys v Henderson, 102 AD2d 924 ); hence People v Chavys (sup

1968(Fishman v. Town of Islip, 20 Misc 2d 180 , affd. 10 A D 2d 984, mot. for lv. to app. den. 11 A D 2d 949; Romano v. Greenwald, 254 App. Div. 782 ; 28 C.

1968Thus the ruling in Williams v. New York ( 337 U. S. 241 ) that the due process clause of the Fourteenth Amendment does not require a Judge to have hearings and to give the convicted person an opportunity to participate in those hearings when he comes to determine a sentence to be imposed after consideration of investigational reports submitted to him, would appear applicable to our consideration of the pertinent New York statutes.