Opinion 08-86

April 24, 2008


Digest:         A judge who, after sentencing a criminal defendant, realizes that the sentence was legally incorrect and excessive should notify the defendant’s attorney and the prosecutor of the error.


Rules:       22 NYCRR 100.1; 100.2(A); 100.3(B)(1). 


         The inquiring judge sentenced a criminal defendant as a second felony offender to a term of 1 ½ to 3 years in a correctional facility. The judge has since realized, however, that because the second offense is not a violation of the Penal Law, the defendant is not a second felony offender. As a result, the judge believes that he/she imposed a legally incorrect, excessive sentence. As the defendant has already served the sentence, the judge asks whether he/she must attempt to locate the defendant to re-sentence him/her.

         Pursuant to the Rules Governing Judicial Conduct, a judge must participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards to preserve the integrity and independence of the judiciary (see 22 NYCRR 100.1). A judge, therefore, must respect and comply with the law, and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Furthermore, a judge must be faithful to the law and maintain professional competence in it (see 22 NYCRR 100.3[B][1]).

         In the Committee’s view, now that the inquiring judge has realized that the imposed sentence is not authorized by law, he/she should notify the defendant’s lawyer and the prosecutor of the error. By taking that important step, the prosecutor and defense lawyer then can consult with each other and the defense lawyer can then also consult with his/her client to determine what action, if any, the client wants to take. The prosecutor then may likewise consider what appropriate action he/she should take.