Sentences for Underlying Felony and Bail Jumping Must Be Consecutive Absent Mitigating Factors that Bear Directly on the Manner the Crime Was Committed

In finding the sentencing court used the wrong “mitigating” factors to determine whether the sentence for bail jumping could run concurrently with the sentence for the underlying felony, the Third Department wrote:

Penal Law § 70.25 (2-c) restricts a court’s sentencing discretion when a person who is convicted of bail jumping in the second  degree  also is convicted of the underlying felony in connection with which he or she had been released on bail. Specifically, if indeterminate sentences are imposed upon both the bail jumping charge and the underlying felony, the bail jumping sentence must run consecutively to the other sentence unless the court “finds mitigating circumstances that bear directly upon the manner in which the crime was committed” (Penal Law § 70.25 [2-c]…).  Here, County Court sought to justify concurrent sentences based upon “the severe penalties, fines, restrictions and state prison sentence [defendant was] earning by [his] antisocial behavior of drinking and driving and failing to come to court, and because [he had pleaded] guilty . . . and waived appeal in another county.” However, these factors have no bearing upon the manner in which the crime was committed … and, therefore, do not support imposing concurrent sentences in this case.  People v Harrison, 105176, 3rd Dept 4-18-22