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DEFENDANT’S MOTION TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN GRANTED, THE UNAVAILABILITY OF A WITNESS AND THE RELATED ADJOURNMENT SHOULD NOT HAVE BEEN CHARGED TO THE PEOPLE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant’s motion to dismiss the indictment on speedy trial grounds should not have been granted. The delay attributed to the unavailability of a witness and the related adjournment should not have been charged to the People:

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We agree with the People that a witness’s one-day unavailability while her father is undergoing heart surgery is an excludable delay that was “occasioned by exceptional circumstances” … . Moreover, the ensuing 21-day adjournment until February 2, 2017 was attributable to the court and not chargeable to the People … , inasmuch as the People had requested a one-day adjournment and “any period of an adjournment in excess of that actually requested by the People is excluded” … . People v Barnett, 2018 NY Slip Op 00968, Fourth Dept 2-9-18

CRIMINAL LAW (DEFENDANT’S MOTION TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN GRANTED, THE UNAVAILABILITY OF A WITNESS AND THE RELATED ADJOURNMENT SHOULD NOT HAVE BEEN CHARGED TO THE PEOPLE (FOURTH DEPT))/SPEEDY TRIAL (CRIMINAL LAW, DEFENDANT’S MOTION TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN GRANTED, THE UNAVAILABILITY OF A WITNESS AND THE RELATED ADJOURNMENT SHOULD NOT HAVE BEEN CHARGED TO THE PEOPLE (FOURTH DEPT))

SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A PRIOR FEDERAL DRUG CONSPIRACY CONVICTION (FOURTH DEPT).

The Fourth Department determined defendant should not have been sentenced as a second felony offender based upon a prior federal drug conspiracy conviction:

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“It is well settled that, under New York’s strict equivalency standard for convictions rendered in other jurisdictions, a federal conviction for conspiracy to commit a drug crime may not serve as a predicate felony for sentencing purposes” … . We therefore modify the order by granting that part of defendant’s motion pursuant to CPL 440.20 seeking to vacate the sentence, and we remit the matter to Supreme Court to resentence defendant as a nonpredicate felon … . People v Hamn, 2018 NY Slip Op 00961, Fourth Dept 2-9-18

CRIMINAL LAW (SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A PRIOR FEDERAL DRUG CONSPIRACY CONVICTION (FOURTH DEPT))/SENTENCING (SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A PRIOR FEDERAL DRUG CONSPIRACY CONVICTION (FOURTH DEPT))/SECOND FELONY OFFENDER (SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A PRIOR FEDERAL DRUG CONSPIRACY CONVICTION (FOURTH DEPT))

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INSUFFICIENT SHOWING THAT SEX OFFENDER’S VIOLATION OF NON-SEXUAL TERMS OF HIS STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) JUSTIFIED A FINDING HE IS UNABLE TO CONTROL SEXUAL MISCONDUCT, COMMITMENT TO LOCKED FACILITY REVERSED (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice DeMoyer, reversing County Court, determined that there was an insufficient showing that respondent sex offender’s non-sexual violations of the terms of his strict and intensive supervision and treatment (SIST) (alcohol abuse) justified a finding he has an inability to control sexual misconduct:

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… [A] Mental Hygiene Law § 10.03 (e) finding of “inability” based on nonsexual SIST violations will satisfy the Michael M. [24 NY3d 649] standard only when such violations bear a close causative relationship to sex offending. Such a relationship is missing here. It is simply not true — as the State claims — that “there is a significant link between respondent’s alcohol use disorder and his sex offenses” or that his sex offending is “fueled by his drug and alcohol use.” A review of the record citations upon which the State relies for those propositions reveals only that respondent was intoxicated during his sex offending decades ago, and that alcohol use “increases his impulsivity and makes [him] more likely to act out.” … [N]o expert has testified that respondent’s substance abuse is “strongly fused” or otherwise inextricably intertwined with his sex offending … . At most, the expert testimony in this case shows that respondent’s alcohol use is colocated with his sex offending (and, for that matter, with every other facet of his life), and that alcohol disinhibits him from resisting the urge to offend sexually. But this testimony is virtually identical to the expert testimony … is inadequate to meet the State’s burden under Michael M. Matter of State of New York v George N., 2018 NY Slip Op 00942, Fourth Dept 2-8-16

MENTAL HYGIENE LAW (INSUFFICIENT SHOWING THAT SEX OFFENDER’S VIOLATION OF NON-SEXUAL TERMS OF HIS STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) JUSTIFIED A FINDING HE IS UNABLE TO CONTROL SEXUAL MISCONDUCT, COMMITMENT TO LOCKED FACILITY REVERSED (FOURTH DEPT))/STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) (MENTAL HYGIENE LAW, INSUFFICIENT SHOWING THAT SEX OFFENDER’S VIOLATION OF NON-SEXUAL TERMS OF HIS STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) JUSTIFIED A FINDING HE IS UNABLE TO CONTROL SEXUAL MISCONDUCT, COMMITMENT TO LOCKED FACILITY REVERSED (FOURTH DEPT))/SEX OFFENDERS (MENTAL HYGIENE LAW, NSUFFICIENT SHOWING THAT SEX OFFENDER’S VIOLATION OF NON-SEXUAL TERMS OF HIS STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) JUSTIFIED A FINDING HE IS UNABLE TO CONTROL SEXUAL MISCONDUCT, COMMITMENT TO LOCKED FACILITY REVERSED (FOURTH DEPT))/CIVIL COMMITMENT (SEX OFFENDERS, MENTAL HYGIENE LAW, INSUFFICIENT SHOWING THAT SEX OFFENDER’S VIOLATION OF NON-SEXUAL TERMS OF HIS STRICT AND INTENSIVE SUPERVISION AND TREATMENT (SIST) JUSTIFIED A FINDING HE IS UNABLE TO CONTROL SEXUAL MISCONDUCT, COMMITMENT TO LOCKED FACILITY REVERSED (FOURTH DEPT))

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR AGREEING TO ANNOTATIONS ON THE VERDICT SHEET WHICH SERVED TO DISTINGUISH COUNTS ALLEGING SIMILAR BEHAVIOR IN THIS AGGRAVATED HARASSMENT CASE, COUNTY COURT REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined defense counsel was not ineffective for agreeing to annotations on the verdict sheet which served to distinguish the aggravated harassment counts from one another, many of which involved similar behavior. County Court’s reversal of this City Court case on ineffective assistance grounds was reversed:

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The trial court provided the jury with a four-page verdict sheet. To help the jurors distinguish between the many similar allegations covering more than three hundred different acts committed over twelve distinct time periods, the court annotated each count on the verdict sheet with a date or date range and a short description of the alleged criminal conduct. For example, the fourth aggravated harassment charge included the annotation “Between June 26, 2011 and July 6, 2011 (emailing approximately 15 times)” and the fourth criminal contempt charge read “On July 12, 2012 (occurrence in small claims court).” …

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CPL 310.20 permits trial courts to annotate verdict sheets containing two or more counts charging offenses set forth in the same article of the law with “the dates, names of complainants, or specific statutory language . . . by which the counts may be distinguished” (CPL 310.20 [2]). Those annotations are intended to “enhance the ability of deliberating juries to distinguish between seemingly identical or substantially similar counts”. If the court believes different or further annotations would be instructive, it may “furnish an expanded or supplemental verdict sheet”… , although it may do so “only . . . with the consent of the parties” … . …

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Both common sense and defense counsel’s summation demonstrate that trial counsel had a sound strategic reason for consenting to the annotations: they encouraged the jury to think about each count and the relevant evidence (restricted by date and type) independently, instead of concluding that Mr. O’Kane’s egregious behavior warranted a conviction on every seemingly identical count. People v O’Kane, 2018 NY Slip Op 00859, CtApp 2-8-18

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CRIMINAL LAW (DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR AGREEING TO ANNOTATIONS ON THE VERDICT SHEET WHICH SERVED TO DISTINGUISH COUNTS ALLEGING SIMILAR BEHAVIOR IN THIS AGGRAVATED HARASSMENT CASE, COUNTY COURT REVERSED (CT APP))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR AGREEING TO ANNOTATIONS ON THE VERDICT SHEET WHICH SERVED TO DISTINGUISH COUNTS ALLEGING SIMILAR BEHAVIOR IN THIS AGGRAVATED HARASSMENT CASE, COUNTY COURT REVERSED (CT APP))/INEFFECTIVE ASSISTANCE DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR AGREEING TO ANNOTATIONS ON THE VERDICT SHEET WHICH SERVED TO DISTINGUISH COUNTS ALLEGING SIMILAR BEHAVIOR IN THIS AGGRAVATED HARASSMENT CASE, COUNTY COURT REVERSED (CT APP))

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CHAIRMAN OF THE BOARD OF PAROLE SHOULD NOT HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO HOLD A DE NOVO PAROLE HEARING AS ORDERED BY THE ARTICLE 78 COURT, THE EXECUTIVE LAW DOES NOT CALL FOR A HEARING IN THIS CONTEXT, ONLY AN INTERVIEW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the chairperson of the Board of Parole should not have been held in civil contempt for a purported failure to follow Supreme Court’s order. After an inmate contested the denial of parole in an Article 78 action, Supreme Court granted the inmate’s petition and ordered the parole board to hold a de novo parole “hearing.” The parole board conducted a parole “interview.” The inmate then moved to hold the parole board chairperson in contempt for failing to conduct a “hearing.” The opinion is comprehensive and too detailed to fairly summarize here. In a nutshell, the Second Department determined the Executive Law does not call for a “hearing” in this context, only an “interview:”

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Pursuant to the relevant provisions of the Executive Law governing the Board’s procedures, we conclude that the court was without authority to order a de novo evidentiary “hearing,” as the petitioner was only entitled to a de novo parole release “interview” and review (see Executive Law § 259-i[2][a][i]). Applying our well-established contempt jurisprudence, it cannot be said that the language employed in the judgment … , was clear and unambiguous since the Board could have reasonably understood and interpreted the judgment as directing it to conduct a de novo interview consistent with the requirements of the controlling statutory language. Contempt findings are inappropriate where, as here, there can be a legitimate disagreement about what the terms of an order or judgment actually mean … . The Board endeavored to comply with the judgment … , by providing a de novo parole release interview with a reconsideration of the petitioner’s record consistent with its statutory mandate under the Executive Law and consistent with its common practices. Matter of Banks v Stanford, 2018 NY Slip Op 00829, Second Dept 2-7-18

CRIMINAL LAW (PAROLE, CHAIRMAN OF THE BOARD OF PAROLE SHOULD NOT HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO HOLD A DE NOVO PAROLE HEARING AS ORDERED BY THE ARTICLE 78 COURT, THE EXECUTIVE LAW DOES NOT CALL FOR A HEARING IN THIS CONTEXT, ONLY AN INTERVIEW (SECOND DEPT))/PAROLE (CHAIRMAN OF THE BOARD OF PAROLE SHOULD NOT HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO HOLD A DE NOVO PAROLE HEARING AS ORDERED BY THE ARTICLE 78 COURT, THE EXECUTIVE LAW DOES NOT CALL FOR A HEARING IN THIS CONTEXT, ONLY AN INTERVIEW (SECOND DEPT))/ADMINISTRATIVE LAW (PAROLE BOARD, CHAIRMAN OF THE BOARD OF PAROLE SHOULD NOT HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO HOLD A DE NOVO PAROLE HEARING AS ORDERED BY THE ARTICLE 78 COURT, THE EXECUTIVE LAW DOES NOT CALL FOR A HEARING IN THIS CONTEXT, ONLY AN INTERVIEW (SECOND DEPT))

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PROSECUTOR’S FAILURE TO PROVIDE THE DEFENSE WITH INFORMATION ABOUT FAVORABLE TREATMENT AFFORDED A WITNESS IN EXCHANGE FOR HIS TESTIMONY, AND THE PROSECUTOR’S FAILURE TO CORRECT THE WITNESS’S MISLEADING TESTIMONY, REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction, based upon the People’s failure to provide exculpatory information and correct a witness’s testimony, required reversal and a new trial. A witness, Avitto, called by the People testified defendant made inculpatory statements (re: the murder charge) while they were in jail together. At trial the Avitto testified he received no benefit from the People in exchange for his testimony. However, after a hearing, it appeared there had been an informal agreement to provide Avitto with favorable treatment in return for his testimony. Avitto was facing a serious charge and needed to complete a drug program to qualify for a shorter sentence. Even though Avitto was not doing well in the drug program, and in fact had left the program, he was allowed to stay out of jail and continue to attempt to complete the program:

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The evidence at issue here—Avitto’s immediate contact with the police … , after leaving the drug program, his subsequent court appearance with detectives and the prosecutor … , when he was released on his own recognizance, as well as his ability to remain out of custody despite poor progress in his drug treatment and numerous violations—was of such a nature that the jury could have found that, despite Avitto’s protestations to the contrary, “there was indeed a tacit understanding” between Avitto and the prosecution that he would receive or hoped to receive a benefit for his testimony … . This evidence was material in nature, and its nondisclosure prejudiced the defendant, as it constituted impeachment material and tended to show a motivation for Avitto to lie … .

Accordingly, the prosecutor was not only required to disclose this evidence to the defendant, but was further required to clarify “the record by disclosing all the details of what had actually transpired” between the District Attorney’s office and Avitto … . The prosecutor further had the obligation to correct any misleading or false testimony given by Avitto at trial regarding his contact with detectives and the prosecutor, and his progression in drug treatment … . These errors were further compounded when the prosecutor reiterated and emphasized Avitto’s misleading testimony during summation … .  People v Giuca, 2018 NY Slip Op 00846, Second Dept 2-7-18

CRIMINAL LAW (BRADY MATERIAL, PROSECUTOR’S FAILURE TO PROVIDE THE DEFENSE WITH INFORMATION ABOUT FAVORABLE TREATMENT AFFORDED A WITNESS IN EXCHANGE FOR HIS TESTIMONY, AND THE PROSECUTOR’S FAILURE TO CORRECT THE WITNESS’S MISLEADING TESTIMONY, REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, BRADY MATERIAL PROSECUTOR’S FAILURE TO PROVIDE THE DEFENSE WITH INFORMATION ABOUT FAVORABLE TREATMENT AFFORDED A WITNESS IN EXCHANGE FOR HIS TESTIMONY, AND THE PROSECUTOR’S FAILURE TO CORRECT THE WITNESS’S MISLEADING TESTIMONY, REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))/BRADY MATERIAL (CRIMINAL LAW, , PROSECUTOR’S FAILURE TO PROVIDE THE DEFENSE WITH INFORMATION ABOUT FAVORABLE TREATMENT AFFORDED A WITNESS IN EXCHANGE FOR HIS TESTIMONY, AND THE PROSECUTOR’S FAILURE TO CORRECT THE WITNESS’S MISLEADING TESTIMONY, REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))/PROSECUTORIAL MISCONDUCT (CRIMINAL LAW, BRADY MATERIAL PROSECUTOR’S FAILURE TO PROVIDE THE DEFENSE WITH INFORMATION ABOUT FAVORABLE TREATMENT AFFORDED A WITNESS IN EXCHANGE FOR HIS TESTIMONY, AND THE PROSECUTOR’S FAILURE TO CORRECT THE WITNESS’S MISLEADING TESTIMONY, REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))

FOR INMATES WHO COMMITTED CRIMES AS JUVENILES, THEIR YOUTH MUST BE TAKEN INTO CONSIDERATION IN PAROLE DETERMINATIONS (SECOND DEPT).

The Second Department affirmed Supreme Court’s ruling sending the matter back for a de novo parole interview. Petitioner was 17 when he committed murder and is now 50. Pursuant to a decision from the 3rd Department, the parole board has decided to include an inmate’s youth at the time of the crime in making parole determinations:

… [W]e deem it appropriate to affirm the judgment that annulled the Parole Board’s determination and remitted the matter to the Parole Board for a de novo interview before a different panel. The petitioner is entitled to a meaningful opportunity for release in which the Parole Board considers, inter alia, his youth at the time of the commission of the crimes and its attendant circumstances … . Matter of Putland v New York State Dept. of Corr. & Community Supervision, 2018 NY Slip Op 00837, Second Dept 2-7-18

CRIMINAL LAW (PAROLE, JUVENILES, FOR INMATES WHO COMMITTED CRIMES AS JUVENILES, THEIR YOUTH MUST BE TAKEN INTO CONSIDERATION IN PAROLE DETERMINATIONS (SECOND DEPT))PAROLE (JUVENILE OFFENDERS, FOR INMATES WHO COMMITTED CRIMES AS JUVENILES, THEIR YOUTH MUST BE TAKEN INTO CONSIDERATION IN PAROLE DETERMINATIONS (SECOND DEPT)

INCOMPLETE JURY INSTRUCTION ON THE DEFINITION OF ‘BUILDING’ REQUIRED A NEW TRIAL IN THIS BURGLARY PROSECUTION (FOURTH DEPT).

The Fourth Department determined defendant was entitled to a new trial because the court did not properly instruct the jury on the definition of a “building” within the meaning of the burglary statute:

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… “[T]he court instructed the jurors that a dwelling is a building which is usually occupied by a person lodging therein at night. A bedroom in a home, where there is more than one tenant, may be considered independent of the rest of the house and may be considered a separate dwelling within a building.’ The court, however, failed to include the part of the definition of building that would require the jury to determine whether the house at issue consisted of two or more units’ and whether the bedroom at issue was a unit that was separately secured or occupied’ (Penal Law § 140.00 [2]). Consequently, given the omission of the definition of [“unit”] and/or [“separately secured or occupied,”] the instruction did not adequately convey the meaning of [“building”] to the jury and instead created a great likelihood of confusion such that the degree of precision required for a jury charge was not met’ ” … . People v Downey, 2018 NY Slip Op 00758, Fourth Dept 2-2-18

CRIMINAL LAW (INCOMPLETE JURY INSTRUCTION ON THE DEFINITION OF ‘BUILDING’ REQUIRED A NEW TRIAL IN THIS BURGLARY PROSECUTION (FOURTH DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, BURGLARY, (INCOMPLETE JURY INSTRUCTION ON THE DEFINITION OF ‘BUILDING’ REQUIRED A NEW TRIAL IN THIS BURGLARY PROSECUTION (FOURTH DEPT))/BURGLARY (JURY INSTRUCTIONS, INCOMPLETE JURY INSTRUCTION ON THE DEFINITION OF ‘BUILDING’ REQUIRED A NEW TRIAL IN THIS BURGLARY PROSECUTION (FOURTH DEPT))/BUILDING (DEFINITION, BURGLARY STATUTE, INCOMPLETE JURY INSTRUCTION ON THE DEFINITION OF ‘BUILDING’ REQUIRED A NEW TRIAL IN THIS BURGLARY PROSECUTION (FOURTH DEPT))

PETITION TO PROHIBIT RETRIAL OF A MANSLAUGHTER COUNT DENIED, ALTHOUGH THE FOURTH DEPT DISMISSED THE COUNT AFTER DETERMINING THE VERDICT WAS REPUGNANT, THE COURT OF APPEALS, AGREEING THAT THE VERDICT WAS REPUGNANT, HELD THAT THE PEOPLE COULD SEEK A SECOND INDICTMENT (FOURTH DEPT).

The Fourth Department dismissed an Article 78 petition seeking to prohibit retrial in a manslaughter case. The Fourth Department had dismissed the manslaughter count after determining the verdict was repugnant. The Court of Appeals agreed the verdict was repugnant but held that dismissal of the was not required:

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Petitioner was convicted of manslaughter in the first degree as a hate crime … and criminal possession of a weapon in the third degree … . On appeal from the judgment of conviction, we determined that the verdict convicting him of manslaughter in the first degree as a hate crime yet acquitting him of manslaughter in the first degree was inconsistent, i.e., ” legally impossible,’ ” inasmuch as all of the elements of manslaughter in the first degree are elements of manslaughter in the first degree as a hate crime … . We thus modified the judgment by reversing that part convicting him of manslaughter in the first degree as a hate crime and dismissing that count of the indictment.

The Court of Appeals agreed that “the jury’s verdict was inconsistent, and thus repugnant” … , but disagreed with our remedy of dismissal. The Court explained that there is “no constitutional or statutory provision that mandates dismissal for a repugnancy error,” …  and that “a repugnant verdict does not always signify that a defendant has been convicted of a crime on which the jury actually found that he did not commit an essential element” … . … As a result, the Court determined that the People could “resubmit the crime of first-degree manslaughter as a hate crime to a new grand jury” … . Matter of DeLee v Brunetti, 2018 NY Slip Op 00742, Fourth Dept 2-2-18

CRIMINAL LAW (REPUGNANT VERDICTS, PETITION TO PROHIBIT RETRIAL OF A MANSLAUGHTER COUNT DENIED, ALTHOUGH THE FOURTH DEPARTMENT DISMISSED THE COUNT AFTER DETERMINING THE VERDICT WAS REPUGNANT, THE COURT OF APPEALS, AGREEING THAT THE VERDICT WAS REPUGNANT, HELD THAT THE PEOPLE COULD SEEK A SECOND INDICTMENT (FOURTH DEPT))/REPUGNANT VERDICTS (CRIMINAL LAW, PETITION TO PROHIBIT RETRIAL OF A MANSLAUGHTER COUNT DENIED, ALTHOUGH THE FOURTH DEPARTMENT DISMISSED THE COUNT AFTER DETERMINING THE VERDICT WAS REPUGNANT, THE COURT OF APPEALS, AGREEING THAT THE VERDICT WAS REPUGNANT, HELD THAT THE PEOPLE COULD SEEK A SECOND INDICTMENT (FOURTH DEPT))

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PERIODS OF POSTRELEASE SUPERVISION MERGE AND CANNOT RUN CONSECUTIVELY, ILLEGAL SENTENCE MUST BE CORRECTED EVEN IF ISSUE NOT RAISED ON APPEAL (FOURTH DEPT).

The Fourth Department noted that periods of postrelease supervision cannot run consecutively. An illegal sentence must be corrected even if the issue is not raised on appeal:

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… [T]he court erred in directing that the periods of postrelease supervision run consecutively to the periods of postrelease supervision imposed in appeal No. 1 … . “Penal Law § 70.45 (5) (c) requires that the periods of postrelease supervision merge and are satisfied by the service of the longest unexpired term” … . We cannot allow an illegal sentence to stand … and we therefore modify the judgment …  accordingly. People v Mcmillian, 2018 NY Slip Op 00649, Fourth Dept 2-2-18

CRIMINAL LAW (PERIODS OF POSTRELEASE SUPERVISION MERGE AND CANNOT RUN CONSECUTIVELY (FOURTH DEPT))/SENTENCING (PERIODS OF POSTRELEASE SUPERVISION MERGE AND CANNOT RUN CONSECUTIVELY (FOURTH DEPT))/POSTRELEASE SUPERVISION  (PERIODS OF POSTRELEASE SUPERVISION MERGE AND CANNOT RUN CONSECUTIVELY (FOURTH DEPT))/APPEALS (CRIMINAL LAW, ILLEGAL SENTENCE MUST BE CORRECTED EVEN IF ISSUE NOT RAISED ON APPEAL (FOURTH DEPT))

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