You are here: / SENTENCING

Tag Archive for: SENTENCING

Imposition of Enhanced Sentence for Defendant’s Tardiness Disallowed

The Second Department determined Supreme Court should not have imposed an enhanced sentence on the ground defendant was late appearing for his sentencing:

The transcript of the plea proceeding does not indicate that the defendant was given any instructions as to what time he was to appear for sentencing; rather, he was told that he must “com[e] to court on the sentence date.” Under these circumstances, the imposition of an enhanced sentence, without affording the defendant an opportunity to withdraw his plea of guilty, was error… . People v Blades, 2013 NY Slip Op 06584, 2nd Dept 10-9-13

 

Restitution to Police Department Re: Expenses of Drug Bust Proper

The Fourth Department determined defendant was properly ordered to pay restitution to the police department in a drug case, but that payment of a surcharge should not have been ordered:

… [A] defendant convicted of, inter alia, a class C “ ‘felony involving the sale of a controlled substance’ may be ordered to repay a law enforcement agency ‘the amount of funds expended in the actual purchase’ of a controlled substance” … .  Section 60.27 (9) was amended in 1991 “to authorize restitution to law enforcement agencies for unrecovered funds utilized to purchase narcotics as part of investigations leading to convictions” … .  We therefore conclude … that the court properly directed defendant to pay restitution to the City of Oswego Police Department for the funds it expended in buying drugs from him.

The People correctly concede with respect to defendant’s further contention … that the court erred in imposing a surcharge on that restitution order.  Penal Law § 60.27 (9) further provides that “[a]ny restitution which may be required to be made to a law enforcement agency pursuant to this section . . . shall not include a designated surcharge.”  People v Boatman, 940, 4th Dept 10-4-13

 

,

Resentencing After Original Sentence Expired Violates Double Jeopardy Clause

The Fourth Department explained that a resentencing which takes place after the original sentence has been completed violates the double jeopardy clause.  People v Alvarado, 961, 4th Dept 9-27-13

 

Court, Not Prosecutor, Must Determine Whether Defendant Is Eligible for Youthful Offender Adjudication

In remitting the matter to determine whether defendant should be sentenced as a youthful offender, the Fourth Department explained that is was unclear whether the court, as opposed to the prosecutor, made the determination not to afford defendant youthful offender status:

“After receipt of a written report of the [preplea or presentence] investigation and at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender” (CPL 720.20 [1]).  In People v Rudolph (___ NY3d ___ [June 27, 2013]), the Court of Appeals held that section 720.20 mandates that, when the sentence is imposed, the sentencing court must determine whether to grant youthful offender status to every defendant who is eligible for it.  The Court of Appeals stated that “[t]he judgment of a court as to which young people have a real likelihood of turning their lives around is just too valuable, both to the offender and to the community, to be sacrificed in plea bargaining” … . People v Brownell, 946, 4th Dept 9-27-13

 

Persistent Felony Offender Statute Does Not Require Prior Felonies to be Equivalent to New York Felonies

The Fourth Department determined that the persistent felony offender statute did not require that the prior felonies taken into consideration for persistent felon status be equivalent to New York felonies:

The persistent felony offender statute … contains no language requiring that the underlying out-of-state conviction be for a crime that would constitute a felony in New York, i.e., “an offense for which a sentence to a term of imprisonment in excess of one year may be imposed” (Penal Law § 10.00 [5]), or that the elements of the foreign crime be equivalent to the elements of a New York crime (see § 70.10 [1] [b] [i]).  Rather, as noted by the Second Circuit in upholding the constitutionality of the persistent felony offender statute, “[s]ection 70.10 (1) (b) does not distinguish among felony convictions that arise under federal, New York State, or out-of-state law.  Thus, if the acts constitute a felony under federal or another state’s law, they will be deemed a felony for purposes of persistent offender status under [s]ection 70.10 even if there is no counterpart felony in New York law.  By contrast, under [s]ection 70.06 [the second felony offender statute], the underlying acts of a federal or out-of-state felony must be recognized as a felony in New York to qualify as a predicate felony” … .  People v Jones, 853, 4th Dept 9-27-13

 

Judge Properly Relied on Presentence Report to Refuse to Adjudicate Defendant a Youthful Offender

The Fourth Department determined that the trial judge’s refusal to adjudicate defendant a youthful offender, after a promise to do so, based upon information in the presentence report, constituted an adequate reason and explanation for the refusal:

“As a matter of law and strong public policy, a sentencing promise made in conjunction with a plea is conditioned upon ‘its being lawful and appropriate in light of the subsequent presentence report or information obtained from other reliable sources’ ” … .  Contrary to defendant’s contention, “the court’s reliance on the presentence report for its determination that defendant would not be afforded youthful offender status ‘constitutes an adequate explanation for the denial of defendant’s request for such status’ ” … . The presentence report “included mitigating and aggravating factors, [and therefore] adequately explained the court’s reasons for denying youthful offender status on the instant indictment” … .  People v Jamal H, 831, 4th Dept 9-27-13

 

Okay to Resentence to Determinate Sentence With No Postrelease Supervision Where Initial Sentence Omitted Reference to Postrelease Supervision

The Fourth Department determined defendant was properly resentenced to a determinate sentence without a period of post-release supervision as a remedy for the failure to inform the defendant of the post-release supervision the first time around:

…[T]he court properly resentenced defendant pursuant to Penal Law § 70.85 to the original sentence without imposing a period of PRS.  The statute permits the sentencing judge, with the consent of the People, to “re-impose the originally imposed determinate sentences of imprisonment without any term of post-release supervision.”  The statute was enacted to “avoid the need to vacate guilty pleas under … when defendants are not properly advised of mandatory terms of postrelease supervision” … .  Here, the People requested that the court resentence defendant pursuant to section 70.85, and the court granted that request.  The fact that defendant did not ask for resentencing is of no moment … People v Bennefield, 920, 4th Dept 9-27-13

 

,

Imposition of Harsher Sentence After Appeal Was Vindictive

The Fourth Department determined the resentencing of defendant after appeal to a more severe sentence than was first imposed was vindictive and imposed the original sentence. The court wrote:

“In order to ensure that defendants are not being penalized for exercising their right to appeal, ‘a presumption of [institutional] vindictiveness generally arises when defendants who have won appellate reversals are given greater sentences . . . than were imposed after their initial convictions’ ” … .  “The threshold issue in evaluating whether a resentence is vindictive is whether the resentence is more severe than that originally imposed” … .  In order to justify an increased sentence, a court must set forth its reasons, and “ ‘[t]hose reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding’ ” … . * * * In our view, “[t]he record is devoid of any objective information sufficient to rebut the presumption of vindictiveness that arose from the court’s imposition of a sentence greater than that imposed after the initial conviction”… . People v Rhodes, 847, 4th Dept 9-27-13

 

Sentencing Court Could Amend Restitution Amount But First Must Give Defendant Opportunity to Withdraw Guilty Plea

The Third Department determined County Court had the authority to amend the amount of restitution initially ordered at sentencing.  However, the change required giving the defendant the right to withdraw the guilty plea:

Notably, “in the normal course of events, the People must ‘advise the court at or before the time of sentencing that the victim seeks restitution . . . and the amount of restitution . . . sought’ (Penal Law § 60.27 [1]), and the trial court must determine the amount of restitution at the time of sentencing” … .  Nevertheless, “the court’s continuing jurisdiction to impose restitution has been recognized where the claim for restitution is raised at or prior to sentencing and the modification or correction of the sentence occurs within a reasonable time thereafter” … .

Here, we do not find the delay between defendant’s September 2009 sentencing and the modification of the restitution order in September 2010 following a hearing unreasonable given the various factors presented by this case … .  “Nonetheless, [a] sentencing court may not impose a more severe sentence than one bargained for without providing [the] defendant the opportunity to withdraw his [or her] plea” … .  Thus, in light of the fact that the amended restitution amount unquestionably exceeds the total amount to which defendant agreed at the time of her plea and she seeks, among other things, vacatur of that plea herein, we deem it appropriate to remit the matter for the purpose of allowing defendant the opportunity to either accept the enhanced restitution amount or withdraw her plea… . People v Mahar, 103960, 3rd Dept 9-26-13

 

Concurrent, Not Consecutive, Sentences Should Have Been Imposed Where “Actus Reus” Was a Single, Inseparable Act

The Second Department corrected a sentence which illegally imposed consecutive, as opposed to concurrent, terms of imprisonment.  The defendant lured a 16 year-old girl to his apartment where they had consensual sex.  Then defendant then allowed the co-defendants to go into the bedroom where they had sex with her.  The court explained:

The imposition of consecutive sentences on the convictions of rape in the first degree, criminal sexual act in the first degree, and sexual abuse in the first degree, was illegal, except with respect to the sentence imposed on the conviction of criminal sexual act in the first degree under count 11. “Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand” … . Moreover, “a defendant may not waive the right to challenge the legality of a sentence” … .

Section 70.25 of the Penal Law provides that “[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences . . . must run concurrently” (Penal Law § 70.25[2]). “Under either of those circumstances, the court has no discretion; concurrent sentences are mandated” … . In determining whether two crimes were separate and distinct for the purposes of imposing consecutive or concurrent sentences, “it is the acts of the defendant that control” … . When the actus reus, or the ” wrongful deed that comprises the physical components of a crime'” …, is a “single inseparable act” that violates more than one statute, single punishment must be imposed … .

Here, the actus reus committed by the defendant in concert with each codefendant was “a single, inseparable act” …. With respect to each codefendant, the defendant’s actus reus violated more than one statute due solely to the acts committed by the codefendant after the defendant had already completed his role. Each actus reus of the defendant “warrants [only] a single punishment” ….  People v Singh, 2013 NY Slip Op 06033, 2nd Dept 9-25-13

 

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