People v RODRIGUES (JOSE)

[*1] People v RODRIGUES (JOSE) 2005 NY Slip Op 50059(U) Decided on January 26, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 26, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: RUDOLPH, J.P., ANGIOLILLO and COVELLO, JJ.
2004-207 W CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

JOSE RODRIGUES, Appellant, -and- G. ZWIRN, Defendant.

Appeal by defendant Jose Rodrigues from amended judgments of the City Court of Mount Vernon, Westchester County (C. Duffy, J.), rendered January 16, 2004, convicting him of violating sections 3.47 and 3.201 of the Mount Vernon City Code and imposing sentences thereon.

Amended judgments of conviction unanimously reversed on the law, order granting the People's motion to set aside the original sentences vacated, the People's
motion denied and judgments of conviction rendered on December 11, 2001, sentencing defendant to a fine of $80.00, reinstated.

Defendant Jose Rodrigues raises issues with regard to the prior proceedings and the granting of the People's motion pursuant to CPL 440.40 (1). The right to a review of the issues raised regarding the legality of the prior proceedings was lost by defendant Rodrigues' failure to timely appeal from the judgments of conviction entered on the initial sentences, as said [*2]judgments were not void (see CPL 460.10 [1] [a]; People v Taras, 269 App Div 694 [1945], affd 296 NY 983 [1947], cert denied 332 US 818 [1947]; People v Cohen, 204 Misc 155 [1953]). Accordingly, upon this appeal from the amended judgments of conviction, review is limited to the propriety of the resentence.

At any time not more than one year after entry of a judgment, the court in which the judgment was entered may, upon motion of the People, set aside the sentence upon the ground that it was invalid as a matter of law (CPL 440.40 [1]). Since defendant was initially sentenced to a fine within the limits of the statute (see Mount Vernon City Code § 3.63), the court's imposition of said sentence, although allegedly based on a misconception as to the People's recommendation, was not illegal and therefore the People's motion should have been denied.
Decision Date: January 26, 2005