You are here: / / ALTHOUGH THE ISSUES WERE NOT RAISED ON APPEAL, THE APPELLATE COURT VACATED...
, ,

ALTHOUGH THE ISSUES WERE NOT RAISED ON APPEAL, THE APPELLATE COURT VACATED THE SENTENCES EITHER BECAUSE THE CONCURRENT SENTENCES WERE ILLEGAL OR BECAUSE THE GUILTY PLEAS WERE INDUCED BY THE PROMISE OF ILLEGAL CONCURRENT SENTENCES (FOURTH DEPT).

The Fourth Department, raising issues not raised in the appeals, determined the concurrent sentences imposed by the judge had to be vacated because the judge did not put the reasons for the concurrent sentences on the record. All the sentences were vacated because the guilty pleas were induced by a promise of illegal concurrent sentences:

… [D]efendant committed the crimes to which he pleaded guilty in appeal Nos. 2 and 3 while released on recognizance for the charge to which he pleaded guilty in appeal No. 1, and defendant also committed the crime to which he pleaded guilty in appeal No. 2 while released on recognizance for the charge to which he pleaded guilty in appeal No. 3. Thus, in the absence of a statement of the facts and circumstances warranting concurrent sentences set forth on the record, the court was required to direct that the felony sentences run consecutively (see § 70.25 [2-b] …). …

A court may, in the interest of justice, impose a concurrent sentence for a conviction of assault in the second degree under Penal Law § 120.05 (7), provided that the court sets forth in the record its reasons for imposing a concurrent sentence (see Penal Law § 70.25 [5] [c] …) … [T]he court imposed a concurrent sentence without setting forth its reason on the record.

… [B]ecause defendant’s guilty pleas in appeal Nos. 1 through 5 were all induced by the promise of illegal concurrent sentencing, we must also vacate the sentence imposed in appeal No. 4, and in each of the five appeals we remit the matter to County Court to afford defendant the opportunity to either withdraw his guilty plea or be resentenced in compliance with Penal Law § 70.25 (2-b) and (5) … . People v Horton, 2022 NY Slip Op 04501, Fourth Dept 7-8-22

Practice Point: Sentences for crimes committed when defendant has been released on his own recognizance can not be concurrent unless the judge puts the relevant facts and reasoning on the record. The same goes for assault second. Here the reasons for the concurrent sentences were not put on the record, rendering the concurrent sentences illegal. Because all the guilty pleas were induced by the promise of concurrent sentences, all the sentences were vacated. The “illegal concurrent sentences” issue had not been brought up on appeal.

 

You might also like
SNOW REMOVAL CONTRACTOR DID NOT OWE A DUTY TO PLAINTIFF IN THIS SLIP AND FALL CASE, INSPECTION THREE HOURS BEFORE THE FALL DID NOT WARRANT DISMISSAL OF THE CAUSE OF ACTION ALLEGING CONSTRUCTIVE NOTICE.
Single Policy Limit Held to Apply to Successive Tenants in Lead-Paint-Tainted Apartment.
Defendant Should Have Been Adjudicated a Youthful Offender; Waiver of Appeal Not Valid
HUGE COKE OVENS IN A STEEL PLANT WERE NOT PRODUCTS IN THE STREAM OF COMMERCE, PRODUCTS LIABILITY CAUSES OF ACTION AGAINST THE MANUFACTURER OF THE OVENS IN THIS ASBESTOS CASE SHOULD HAVE BEEN DISMISSED.
DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO INVESTIGATE THE ROBBERY VICTIM’S STATEMENT THAT DEFENDANT WAS NOT ONE OF THE PERPETRATORS; NEW TRIAL ORDERED (FOURTH DEPT).
A SHOWING THAT MOTHER WAS ABUSED AND THE CHILD WITNESSED THE ABUSE IS NOT LEGALLY SUFFICIENT EVIDENCE THAT MOTHER NEGLECTED THE CHILD (FOURTH DEPT).
PLAINTIFF DEMONSTRATED DEFENDANTS’ CONSTRUCTION OF A FENCE VIOLATED A VALID RESTRICTIVE COVENANT IN THE PARTIES’ DEEDS (FOURTH DEPT).
BECAUSE DEFENDANT’S 20-YEAR-OLD OUT-OF-STATE CONVICTION DID NOT INVOLVE A SEXUALLY VIOLENT OFFENSE, THE CORRECTION LAW WHICH REQUIRES THAT HE BE DESIGNATED A SEXUALLY VIOLENT OFFENDER IS UNCONSTITUTIONAL AS APPLIED TO HIM (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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFFS ALLEGED THE CONTRACT FOR THE PURCHASE OF LAND INCLUDED A PARCEL OF... ONE OF MOTHER’S CHILDREN OPENED A LOCKED WINDOW, TOOK OUT THE SCREEN AND...