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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.

 

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