You are here: / / THE SENTENCING JUDGE DID NOT HAVE THE AUTHORITY TO DIRECT THAT THE SENTENCE...
,

THE SENTENCING JUDGE DID NOT HAVE THE AUTHORITY TO DIRECT THAT THE SENTENCE RUN CONSECUTIVELY WITH A SENTENCE WHICH HAD NOT YET BEEN IMPOSED BY A DIFFERENT COURT; THE APPROPRIATE APPELLATE REMEDY IS TO STRIKE THE DIRECTIVE (FOURTH DEPT).

The Fourth Department, reversing (modifying) County Court, In a full-fledged opinion by Justice NeMoyer, determined the sentencing court did not have the authority to order the sentence to run consecutively with a sentence that had not yet been imposed by a different court. The appropriate appellate remedy is to strike the directive, rather than send the matter back for resentencing:

A sentencing court has no power to dictate whether its sentence will run concurrently or consecutively to another sentence that has not yet been imposed. When a sentencing court violates that rule and purports to direct the relationship between its present sentence and an anticipated forthcoming sentence, the proper remedy is usually to strike the improper directive, not to remit for a new sentencing proceeding at which the court could exercise the very power it lacked originally. * * *

Rather than remitting for resentencing, the proper remedy under these circumstances is to simply vacate County Court’s improper directive with respect to consecutive sentencing. That remedy will put defendant in the same position as if County Court had not issued that illegal directive in the first place. Such a remedy will also adequately “protect” the People’s interests, since it will place them in the exact position they would have occupied had County Court not issued its illegal directive. Indeed, because the People had no legitimate right or interest in County Court’s original illegal sentence, the People have no right or interest that could be “protected” with a remittal order calculated only to achieve the very outcome — consecutive sentencing — that they had no right to obtain in the first place. People v Barthel, 2021 NY Slip Op 04834, Fourth Dept 8-26-21

 

You might also like
HERE THE ASSAULT SECOND DEGREE COUNT WAS AN INCLUSORY CONCURRENT COUNT OF ASSAULT ON A POLICE OFFICER; THE ASSAULT SECOND CONVICTION WAS REVERSED AND THE COUNT DISMISSED; THE TERM “INCLUSORY CONCURRENT COUNT” WAS EXPLAINED (FOURTH DEPT).
PLAINTIFF’S ATTORNEY VIOLATED THE RULES OF PROFESSIONAL CONDUCT BY DEPOSING A NONPARTY WITNESS WHEN HER COUNSEL WAS NOT PRESENT, HOWEVER THE VIOLATION DID NOT PREJUDICE DEFENDANTS AND DID NOT THEREFORE REQUIRE DISQUALIFICATION (FOURTH DEPT). ​
Court Should Have Granted a Hearing on Defendant’s Motion to Vacate His Conviction on Ineffective-Assistance Grounds
Failure to Strictly Comply with the Procedure Mandated by the State Environmental Quality Review Act (SEQRA) Required Annulment of the Town’s Negative Declaration Re: the Construction of a Casino and Resort
DEFENDANT, PURSUANT TO CORRECTION LAW 168-A (3)(B), WAS DESIGNATED A “SEXUALLY VIOLENT OFFENDER” BASED SOLELY ON HIS OUT-OF-STATE CONVICTION OF A REGISTRABLE SEXUAL OFFENSE WHICH DID NOT INVOLVE VIOLENCE; THE CORRECTION LAW AS APPLIED TO DEFENDANT VIOLATED HIS RIGHT TO DUE PROCESS; TWO-JUSTICE DISSENT (FOURTH DEPT).
DENIAL OF MOTHER’S REQUEST FOR A LINCOLN HEARING WAS AN ABUSE OF DISCRETION.
A COURT DOES NOT LOSE JURISDICTION OVER SENTENCING A DEFENDANT PURSUANT TO CRIMINAL PROCEDURE LAW 390.30 IF MORE THAN A YEAR ELAPSES BETWEEN CONVICTION AND SENTENCING (FOURTH DEPT).
DEFENDANT ENTITLED TO A HEARING ON HIS INEFFECTIVE ASSISTANCE ALLEGATIONS IN HIS MOTIONS TO VACATE HIS CONVICTIONS, EVEN THOSE ALLEGATIONS THAT COULD HAVE BEEN RAISED ON APPEAL (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE MAYOR’S STATEMENTS WERE TRUE AND DID NOT EVINCE MALICE; PLAINTIFF’S... PLAINTIFFS RAISED A QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE...