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THE SENTENCE FOR KIDNAPPING MUST RUN CONCURRENTLY WITH THE SENTENCE FOR FELONY MURDER; MOTION TO VACATE THE CONVICTION PROPERLY BROUGHT PURSUANT TO CRIMINAL PROCEDURE LAW 440.20 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) the judge should have analyzed the motion to vacate the conviction under Criminal Procedure Law (CPL) 440.20, as well as 440.10; (2) the sentence for kidnapping should be concurrent with the sentence for felony murder; and (3) the judge failed to address whether the running of the kidnapping sentence consecutively to the other murder convictions violated defendant’s rights to equal protection. Matter remitted for consideration of the equal-protection argument:

The Supreme Court erred in construing the defendant’s motion as one solely pursuant to CPL 440.10. Rather, the motion also sought resentencing on the basis that the kidnapping sentence “was unauthorized, illegally imposed or otherwise invalid as a matter of law” (CPL 440.20[1]) because it should have been made to run concurrently with the felony murder conviction under count three of the indictment, and it should have been made to run concurrently with all of the murder convictions based on his rights to equal protection. That branch of the motion was properly made pursuant to CPL 440.20 (see CPL 440.20[4]). …

… [T]he imposition of consecutive sentences for the kidnapping conviction under count four of the indictment and the felony murder conviction under count three of the indictment was unlawful, since the kidnapping … , of which the defendant was convicted under count four of the indictment, also constituted the underlying felony in his murder conviction under count three of the indictment, thereby constituting a “material element” of that crime (Penal Law § 70.25[2] …). …

The Supreme Court failed to address the only remaining issue raised by the defendant on this appeal—that the running of the sentence on the kidnapping conviction consecutively to the sentences on the other murder convictions violated his rights to equal protection. Accordingly, we remit the matter to the Supreme Court, Queens County, for a determination of that issue. People v Khan, 2020 NY Slip Op 03537, Second Dept 6-24-20

 

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