People v Ortega

People v Ortega 2014 NY Slip Op 07440 Decided on October 30, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 30, 2014
Tom, J.P., Sweeny, Andrias, Moskowitz, Gische, JJ.
1565/04 13371 13370

[*1] The People of the State of New York, Respondent,

v

Anthony Ortega, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Alice Wiseman of counsel), for respondent.

Judgment of resentence, Supreme Court, New York County (Eduardo Padro, J.) rendered April 5, 2013, as amended April 10, 2013, resentencing defendant to an aggregate term of 12 years, unanimously affirmed. Appeal from judgment of resentence, same court and Justice, rendered July 13, 2012, unanimously dismissed as subsumed in the appeal from the April 10, 2013 amended judgment of resentencing.

The resentencing was properly limited to correcting the error in defendant's original sentence, where the sentencing court failed to place on the record that defendant's sentences would all run concurrently with a separate, already-imposed misdemeanor sentence. This procedural correction did not authorize the court to revisit the appropriateness of defendant's original sentence (see People v Lingle, 16 NY3d 621, 634-635 [2011]; see also CPL 430.10).

In any event, we find no basis for reducing the sentence. We note that on defendant's direct appeal (70 AD3d 416, 418 [1st Dept 2010], lv denied 15 NY3d 808 [2010]), this Court upheld the same sentence, both on the ground of defendant's valid waiver of his right to appeal, and alternatively on the merits.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 30, 2014

CLERK