State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 19, 2015 106519 

________________________________

THE PEOPLE OF THE STATE OF 

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

SCOTT A. CLAPPER,

Appellant.

________________________________

Calendar Date: October 16, 2015

Before: McCarthy, J.P., Rose, Lynch and Devine, JJ.

__________

Barrett D. Mack, Albany, for appellant, and appellant 

pro se.

Robert M. Carney, District Attorney, Schenectady (Peter M.

Willis of counsel), for respondent.

__________

Lynch, J.

Appeal from a judgment of the Supreme Court (Milano, J.),

rendered December 9, 2013 in Schenectady County, convicting

defendant upon his plea of guilty of the crime of burglary in the

third degree.

In satisfaction of a three-count indictment, defendant

entered a guilty plea to burglary in the third degree and

executed a written appeal waiver. The plea agreement provided

that defendant would receive a prison sentence of 1 to 3 years,

to be served consecutively to the sentences expected to be

imposed upon his recent guilty plea in an unrelated matter in

Schoharie County (People v Clapper, ___ AD3d ___ [appeal No.

106520, decided herewith]). On December 9, 2013, Supreme Court
-2- 106519 

imposed the agreed-upon prison sentence of 1 to 3 years on this

Schenectady County matter, and specified that it was to be served

consecutively to the Schoharie County sentences. However,

defendant was not sentenced on the Schoharie County matter until

January 8, 2014 (id.). Defendant now appeals from the judgment

entered in Schenectady County.

Initially, defendant's unchallenged appeal waiver does not

preclude his arguments regarding the legality of his sentence

(see People v Callahan, 80 NY2d 273, 280 [1992]). As defendant

argues, and the People concede, Supreme Court had no authority to

direct that the sentence for burglary in the third degree be

served consecutively to the Schoharie County sentences that had

not yet been imposed (see Penal Law § 70.25 [1]).1 That is, the

"sentencing discretion afforded by Penal Law § 70.25 (1) devolves

upon the last judge in the sentencing chain" (Matter of Murray v

Goord, 1 NY3d 29, 32 [2003]). Accordingly, the sentence here

must be vacated and the matter remitted for resentencing. 

With regard to defendant's contentions concerning the

ineffectiveness of counsel raised in his pro se brief, they are

unpreserved for our review due to defendant's failure to make an

appropriate postallocution motion (see People v Kormos, 126 AD3d

1039, 1040 [2015]). Moreover, they concern matters outside of

the record on appeal that are more appropriately addressed in the

context of a CPL article 440 motion (see People v Toback, 125

AD3d 1060, 1061-1062 [2015], lv denied 25 NY3d 993 [2015]).

McCarthy, J.P., Rose and Devine, JJ., concur.

1 The record does not reflect that the People, upon

discovering this error, moved, as they should have, to set aside

the sentence as illegal (see CPL 440.40 [1]).
-3- 106519 

ORDERED that the judgment is modified, on the law, by

vacating the sentence imposed; matter remitted to the Supreme

Court for further proceedings not inconsistent with this Court's

decision; and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court