On June 17, 2006, the defendant pleaded guilty to Petit Larceny (Penal Law §155.25) under Docket No. 2006NY040709 and was sentenced to a conditional discharge with 10 days community service or a 45-day jail alternative. The defendant was subsequently arrested on July 27, 2006 and charged with Burglary in the Third Degree (Penal Law §140.20), Petit Larceny (Penal Law §155.25), and Criminal Possession of Stolen Property in the Fifth Degree (Penal Law §165.40) under Docket No. 2006NY050316. Thereafter, on August 1, 2006, the defendant pleaded guilty to Petit Larceny (Penal Law §155.25) under Docket No. 2006NY050316 and was sentenced on November 8, 2006 to one year jail. The defendant was also sentenced on November 8, 2006 under Docket No. 2006NY040709 to 30 days jail, to run concurrent with the sentence imposed under Docket No. 2006NY050316, for violating the terms of his conditional discharge. The defendant now moves pro se to set aside his sentences pursuant to CPL 440.20. First, the defendant maintains that his sentence should be reduced to 6 months jail since he is HIV positive and that he was not placed in protective custody as requested due to his illness. Second, the defendant maintains that his sentence should be set aside as he was not afforded an opportunity to make a statement before being sentenced.

A sentence may be set aside when "unauthorized, illegally imposed, or otherwise invalid as a matter of law" (see CPL 440.20[1]). Contrary to the defendant's contention, his request for leniency due to his HIV status does not constitute a basis for relief under CPL 440.20 (see People v Torres Rentas, 193 AD2d 565 [1st Dept 1993], lv denied 82 NY2d 725 [1993]). Likewise, a sentence will not be set aside under CPL 440.20 if a defendant requests to be placed in protective custody, and is not subsequently placed therein. Placement of an individual at a specific facility as well as prison services, including health care, are matters to be decided by the Department of Correction Services (hereinafter DOCS) (see People v Purley, 297 AD2d 499, 501 [1st Dept 2002], lv denied 99 NY2d 503 [2002]). Once sentenced, a defendant is committed to the custody of DOCS (see Penal Law §70.20[1]). Thereafter, it is the responsibility of DOCS to place the [*2]defendant into a specific correctional facility (see Correction Law §71). Court directives regarding placements of defendants within a specific DOCS facility will be deemed as a commitment to DOCS custody generally (see Correction Law §71[6]). Any comment the court makes as to where a defendant should be placed following commitment are viewed as recommendations which do not effect DOCS authority (see People v Purley, supra at 501, citing People v Sass 182 AD2d 861 [3d Dept 1992], appeal denied 80 NY2d 837 [1992]). When DOCS fails to follow a sentencing court's recommendation, it does not necessarily follow that the sentence was "unauthorized, illegally imposed, or otherwise invalid as a matter of law" pursuant to CPL 440.20.

However, the defendant correctly argues that the motion to set aside his sentences should be granted on the ground that he was not given the opportunity to make a statement before being sentenced. At sentencing, it is a prerequisite that the defendant be given an opportunity to make a statement before a sentence is imposed (see CPL 380.50[1]). CPL 380.50(1) provides that before pronouncing sentence the court must ask the defendant whether he or she wishes to make a statement on his or her own behalf. A court's failure to provide a defendant an opportunity to speak before sentence will result in the sentence being set aside and vacated (see People v Diaz, 212 AD2d 412 [1st Dept 1995]; People v Lucks, 91 AD2d 896, 897 [1st Dept 1983]).

After reviewing the minutes from the November 8, 2006 sentencing, it is apparent that the defendant was not given an opportunity to make a statement on his own behalf before statement was imposed. Therefore, the defendant's motion to set aside the sentences imposed is granted and such sentences are vacated (see People v Diaz, supra; People v Lucks, supra). The defendant and defense counsel are to appear in Part A on February 9, 2007 to allow the defendant an opportunity to make a statement on his own behalf, should he so desire, prior to resentencing.

Dated:New York, New York

January 31, 2007

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Judge of the Criminal Court