People v. Johnson

203 A.D.3d 1396

165 N.Y.S.3d 608

The PEOPLE of the State of New York, Respondent,

v.Wellington JOHNSON Jr., Appellant.

110911

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 8, 2022

Decided and Entered: March 17, 2022

John A. Cirando, Syracuse, for appellant.

William G. Gabor, District Attorney, Wampsville (Robert A. Mascari of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Pritzker, Colangelo and Ceresia, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

Appeals (1) from an order of the County Court of Madison County (McDermott, J.), entered September 12, 2018, which dismissed defendant's motion to, among other things, resettle the April 9, 2001 sentencing transcript and uniform sentence and commitment form, and (2) from an order of said court, entered December 6, 2018, which amended the April 9, 2001 uniform sentence and commitment form.

Defendant was convicted of murder in the second degree under count 1 of an indictment that charged him with the intentional murder of the victim between February 18 and 19, 2000, and he was sentenced on April 9, 2001 to a prison term of 25 years to life. The judgment of conviction was affirmed on appeal ( 303 A.D.2d 830, 758 N.Y.S.2d 687 [2003], lvs denied 99 N.Y.2d 655, 760 N.Y.S.2d 120, 790 N.E.2d 294 [2003], 100 N.Y.2d 583, 764 N.Y.S.2d 393, 796 N.E.2d 485 [2003] ). As relevant here, in November 2018 defendant moved in County Court for various relief, seeking to settle or correct the sentencing transcript and the uniform sentence and commitment form with regard to the date of the murder, the failure to address second felony offender sentencing and the sentencing court's failure to specify the crime for which he was being sentenced on April 9, 2001 or to address the mandatory surcharge. Defendant's motion indicated that he sought this relief in connection with his intent to apply for Executive Clemency (see Executive Law § 15 ).

County Court largely denied the motion in an order entered December 6, 2018, noting that all of the issues raised could have been argued on direct appeal from the judgment of conviction. The court found that the date of the crime on the sentence and commitment form – "February 18–19, 2000" – was not shown to be incorrect in that it was consistent with the date alleged in the indictment and bill of particulars. The court further noted that neither the trial transcript nor any other evidence was submitted on the motion to support defendant's claim that the date of the murder had been narrowed at trial to February 18, 2000.¹ With regard to the sentencing court's purported failure to name the offense for which defendant was being sentenced, County Court found that all of the sentencing requirements had been satisfied (see CPL art 380) including issuance of a uniform sentence and commitment form and a certificate of conviction showing the sentence pronounced by the court for the crime of conviction (see CPL 380.60 ). Defendant's claim that the sentencing court should have addressed second felony offender sentencing was rejected on the ground that the predicate status was inapplicable to his class A–1 felony conviction (see Penal Law §§ 70.06[1][a] ; 125.25[1]). The court further found that the mandatory surcharge, which was marked as "waived" on the uniform sentence and commitment form and was not mentioned at sentencing, was not waivable and amended that form to include the $250 surcharge. Defendant appeals.

As a general rule, "no appeal lies from a determination made in a criminal proceeding unless one is provided by the CPL, [which] exclusively provides for rights to appeal in criminal matters" ( People v. Stevens, 91 N.Y.2d 270, 277, 669 N.Y.S.2d 962, 692 N.E.2d 985 [1998] [internal quotation marks and citations omitted]). A defendant's right to appeal to this Court in a criminal case is "strictly limited to those authorized by statute" ( People v. Bautista, 7 N.Y.3d 838, 839, 823 N.Y.S.2d 754, 857 N.E.2d 49 [2006] ; see CPL 450.10 ; 450.30). The December 6, 2018 order denying defendant's motion to correct, amend or settle the sentencing transcript and the uniform sentence and commitment form and adding the mandatory surcharge does not fit within the statutory authorization for appeals by a defendant as of right to this Court (see CPL 450.10 ; People v. Whalen, 49 A.D.3d 916, 917, 852 N.Y.S.2d 482 [2008], lv denied 10 N.Y.3d 940, 862 N.Y.S.2d 347, 892 N.E.2d 413 [2008] ). Defendant's reliance on case law involving the correction of trial records on direct...