The Fourth Department noted the trial court applied the wrong criteria to defendant’s motion pursuant to CPL 440.20 to vacate his consecutive sentences and determined defendant’s sentences must run concurrently. Either the robbery or forgery count could serve as the predicate for the felony assault count and therefore the sentences for the predicate counts must run concurrently with the sentence for felony assault:
…[T]he court erred in denying the motion on the ground that defendant could have raised this issue on his direct appeal. Mandatory denial of a motion pursuant to CPL 440.20 is required only when the issue “was previously determined on the merits upon an appeal from the judgment or sentence” (CPL 440.20 ), which in this case it was not … . The court erred in conflating the provisions of CPL 440.10 with those of CPL 440.20. The procedural bar set forth in CPL 440.10 (2) (c) “applies only to motions made pursuant to section 440.10, and it is undisputed that the instant motion was made pursuant to section 440.20” … .
We agree with defendant that the consecutive sentences for the robbery and forgery counts are illegal under the facts of this case. The indictment and charge to the jury set forth that either count could serve as the predicate for the count of felony assault, and thus the predicate counts must run concurrently with the count of felony assault … . The sentences imposed on the counts of robbery and forgery must therefore also run concurrently… . People v Povoski, 1050.1, 4th Dept 11-8-13