Saturday, June 16, 2012

Fourth Department, Sua Sponte, Corrects Illegal Sentence

Court have repeatedly held that  where there "was no evidence of intended use of the weapon against another apart from its use in the killing of the murder victim" (People v Boyer, 31 AD3d 1136, 1139, lv denied 7 NY3d 865, amended on other grounds 87 AD3d 1413; see People v Wright, ___ NY3d ___, ___ [June 5, 2012]) the sentence imposed for criminal possession of a weapon must run concurrently with that for the murder. However, in People v Carter ( 2012 NY Slip Op 04845 [4th Dept 6/15/2012]) neither trial nor appellate counsel failed to argue that,as a matter of law, the trial court could not lawul order that the that Mr. Cater's sentence for  criminal possession of a weapon run consecutively with his sentence for murder. Fortunately, the Fourth Department, sua sponte, corrected and reduced this unlawful sentnece, explaining
We conclude, however, that the sentence is illegal insofar as the court directed that the sentence imposed for criminal possession of a weapon in the second degree shall run consecutively to the concurrent sentences imposed for the two counts of murder in the second degree (see People v Ramsey, 59 AD3d 1046, 1048, lv denied 12 NY3d 858; People v Fuentes, 52 AD3d 1297, 1300-1301, lv denied 11 NY3d 736). We therefore modify the judgment accordingly. " Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand' " (People v Davis, 37 AD3d 1179, 1180, lv denied 8 NY3d 983). As relevant here, the sentence is illegal because, "[p]ursuant to Penal Law § 70.25 (2), [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, . . .' the sentences, with an exception not relevant here, must run concurrently. Based on the evidence presented at trial, . . . the court has no discretion; concurrent sentences are mandated' " (People v Roundtree, 75 AD3d 1136, 1138, lv denied 15 NY3d 855, quoting People v Hamilton, 4 NY3d 654, 658; see People v Cromwell, 71 AD3d 414, 415, lv denied 15 NY3d 803; People v Mercer, 66 AD3d 1368, 1370, lv denied 13 NY3d 940). 
Since one can not count on appellate courts to notice and correct an illegal sentence when the issue is not raised, defense counsel are reminded to always determine what sentences could lawfully be imposed on their clients.

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