The Third Department noted that imposition of both a fine and imprisonment for Driving While Intoxicated is discretionary. County Court’s indication that the fine was “mandatory” required remittal for resentencing. People v Olmstead, 105214, 3rd Dept 11-21-13
In a full-fledged opinion by Judge Abdus-Salaam, the Court of Appeals determined that where aggregate one-year consecutive sentences are capped at 2 years pursuant to Penal Law section 70.30 (2) (b), jail time and good time credits should be applied to the two-year period, not the longer aggregate term on which the two-year cap was imposed:
Having determined that Penal Law § 70.30 (2) (b) imposes a two-year aggregate term of imprisonment, we turn to whether this two-year aggregate term may be reduced by jail time and good time credit a prisoner has earned while incarcerated. Penal Law § 70.30 (3) (b) and (4) (b) provide that, where a prisoner is serving consecutive definite sentences, jail time and good time credit must be applied against the prisoner’s aggregate term of imprisonment (see Penal Law § 70.30 [3] [b]; [4] [b] [emphasis added]), although good time credit may not exceed one third of that aggregate term (see id. at [4] [b]; Correction Law § 804 [1]).
Considering these directives together with section 70.30 (2) (b), it follows that, in cases where the two-year limit on consecutive definite sentences applies, jail time and good time credit must be applied against the two-year aggregate term rather than the aggregate term imposed by the sentencing court. Under such circumstances, correctional authorities should calculate the time to be served under the sentences by reducing the two-year aggregate term by the available jail time credit and any good time credit that does not exceed 243 days (or one-third of the two-year aggregate term) (see Penal Law § 70.30 [3] [b]; [4] [b]). People ex rel Ryan… v Cheverko…, 183, CtApp 11-21-13
The Fourth Department wrote:
Defendant … appeals from an adjudication that revoked his probation and sentenced him to three terms of incarceration of 1… to 4 years, two of which were ordered to run consecutively to each other. Defendant’s sentence thus aggregates to a term of incarceration of 2… to 8 years, and we agree with defendant that the sentence is illegal. “[H]aving adjudicated defendant a youthful offender, [Supreme C]ourt was without authority to impose consecutive sentences in excess of four years.” We therefore modify the adjudication by directing that all of the sentences shall run concurrently with respect to each other… . People v Tajenee J, 1175, 4th Dept 11-15-13
In a full-fledged opinion by Judge Abdus-Salaam, the Court of Appeals determined that, with respect to New York’s sentence enhancement statutes, “the controlling date of sentence for the defendant’s prior conviction is the original date of sentence for that conviction… [not] the date of a later resentencing which rectifies the flawed imposition of post-release supervision (PRS) in accordance with … People v Sparber (10 NY3d 457 [2008]). … Therefore, at sentencing for a more recent crime, the defendant’s prior conviction qualifies as a predicate felony conviction if the original date of sentence precedes the commission of the present offense.” People v Boyer…, 205, 206, CtApp 11-14-13
In a full-fledged opinion by Judge Read, the Court of Appeals determined “a sentence imposed for ‘simple’ knowing, unlawful possession of a loaded weapon (i.e., without any intent to use) was properly run consecutively to the sentence for another crime committed with the same weapon. [The defendants in these cases] completed the crime of possession independently of their commission of the later crimes, and therefore consecutive sentencing was permissible.” The court explained:
The mens rea for any crime “‘can be formed, and need only exist, at the very moment the person engages in prohibited conduct or acts to cause the prohibited result, and not at any earlier time'” … . The mens rea for “simple” possession is knowing unlawful possession of a loaded firearm. So long as a defendant knowingly unlawfully possesses a loaded firearm before forming the intent to cause a crime with that weapon, the possessory crime has already been completed, and consecutive sentencing is permissible. People v Brown… 199, 200, 201, CtApp 11-14-13
The Fourth Department determined the imposition of the maximum sentence for criminal possession of a weapon in the second degree (15 years) was unduly harsh and severe:
Defendant has no prior felony convictions, and he served four years in the United States Navy, receiving an honorable discharge. Also, it is undisputed that defendant did not threaten anyone with the weapon or use it in a violent manner. Although we are mindful that defendant’s actions endangered the lives of innocent people, including the police officers who were pursuing his vehicle, we conclude that the maximum punishment is not warranted. We therefore modify the judgment as a matter of discretion in the interest of justice by reducing the sentence imposed for criminal possession of a weapon in the second degree to a determinate term of imprisonment of 10 years (see generally CPL 470.15 [6] [b]), to be followed by the five-year period of postrelease supervision imposed by the court. People v Atchison, 1091, 4th Dept 11-8-13
The Fourth Department noted the trial court applied the wrong criteria to defendant’s motion pursuant to CPL 440.20 to vacate his consecutive sentences and determined defendant’s sentences must run concurrently. Either the robbery or forgery count could serve as the predicate for the felony assault count and therefore the sentences for the predicate counts must run concurrently with the sentence for felony assault:
…[T]he court erred in denying the motion on the ground that defendant could have raised this issue on his direct appeal. Mandatory denial of a motion pursuant to CPL 440.20 is required only when the issue “was previously determined on the merits upon an appeal from the judgment or sentence” (CPL 440.20 [2]), which in this case it was not … . The court erred in conflating the provisions of CPL 440.10 with those of CPL 440.20. The procedural bar set forth in CPL 440.10 (2) (c) “applies only to motions made pursuant to section 440.10, and it is undisputed that the instant motion was made pursuant to section 440.20” … .
We agree with defendant that the consecutive sentences for the robbery and forgery counts are illegal under the facts of this case. The indictment and charge to the jury set forth that either count could serve as the predicate for the count of felony assault, and thus the predicate counts must run concurrently with the count of felony assault … . The sentences imposed on the counts of robbery and forgery must therefore also run concurrently… . People v Povoski, 1050.1, 4th Dept 11-8-13
The Third Department determined the failure of County Court to set forth the manner and time of the payment of restitution required that the restitution order be vacated and the matter remitted to correct the omissions. Peoplev Durham, 105027, 3rd Dept 10-17-13
The Court of Appeals determined that the defendant’s Pennsylvania conviction for third degree murder (when the defendant was 15) could not serve as the basis for a second felony offender sentence. In so finding, the court noted that the error did not need to be preserved for the Court of Appeals to reach it:
As an initial matter, we conclude that this case falls within the narrow exception to our preservation rule permitting appellate review when a sentence’s illegality is readily discernible from the trial record … . * * *
Penal Law § 30.00 (1) specifies that a person must be at least 16 years old to be criminally responsible for his conduct. Penal Law § 30.00 (2) lists crimes that are exceptions to this age requirement, but second-degree manslaughter is not among them. So assuming as we must for purposes of this appeal that third-degree murder in Pennsylvania is equivalent to second degree manslaughter in New York, defendant’s Pennsylvania conviction was not a predicate felony conviction within the meaning of Penal Law § 70.06 (b) (i) because he could not even have been prosecuted for second-degree manslaughter in New York at the age of 15. People v Santiago, 159, CtApp 10-15-13
In finding defendant’s motion for resentencing pursuant to CPL 440.46 should have been granted, the Second Department explained the relevant criteria:
Although resentencing is not mandatory, there is a statutory presumption in favor of resentencing (see L 2004, ch 738, § 23; CPL 440.46[3]…). Under the circumstances of this case, the factors relied upon by the Supreme Court in denying the motion–the defendant’s criminal history and parole violations–are insufficient to overcome the statutory presumption. The instant offense and many of the defendant’s prior offenses consisted of low-level drug crimes, and none of the defendant’s recent convictions involved violence or weapons …. The defendant had no disciplinary infractions in prison, and had several positive accomplishments … . While the defendant’s parole violations were a relevant consideration …, they were only one factor to consider, and did not mandate denial of the defendant’s motion …. Under all of the circumstances presented here, “the presumption that the defendant is entitled to benefit from the reforms enacted by the Legislature based upon its judgment that the prior sentencing scheme for drug offenses like that committed by the defendant was excessively harsh, has not been rebutted” … . People v Green, 2013 NY Slip Op 06588, 2nd Dept 10-9-13
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