| Matter of Lopez v Goord |
| 2008 NY Slip Op 04411 [51 AD3d 1231] |
| May 15, 2008 |
| Appellate Division, Third Department |
| In the Matter of Dencil Lopez, Appellant, v Glenn S. Goord, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Nancy A. Spiegel of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the Supreme Court (Collins, J.), entered November8, 2006 in Albany County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of respondent denying petitioner's request torecalculate his aggregate sentence.
Following a jury trial, petitioner was convicted of manslaughter in the first degree, threecounts of robbery in the first degree, criminal use of a firearm in the first degree and criminalpossession of a weapon in the second degree. The robbery charges included convictions underPenal Law § 160.15 (1), (2) and (4), and stemmed from an incident wherein petitioner,acting in concert with two other individuals, brandished a weapon and forcibly stole cash andjewelry from the manager of a bodega before shooting him in the back of the head, killing him.Petitioner thereafter was sentenced as a second violent felony offender to prison terms of12½ to 25 years on his conviction for manslaughter in the first degree, 12½ to 25years on each conviction for robbery in the first degree, 7½ to 15 years on the criminal useof a firearm count and 4 to 8 years on the criminal possession of a weapon count. The sentencefor the manslaughter conviction was to run consecutive to the remaining sentences, which ranconcurrently with each other.
Upon appeal, the First Department modified, holding that the sentence for robbery in the firstdegree under Penal Law § 160.15 (1) (causes serious physical injury) must runconcurrently with petitioner's sentence on the manslaughter conviction "as the injury is the sameas to both convictions" (People vLopez, 15 AD3d 232 [2005], lv denied 4 NY3d 888 [2005]). The First [*2]Department noted, however, that such modification "[did] not affectthe consecutive sentences imposed for the other two robbery convictions, which [were] notrequired to run concurrently with the manslaughter sentence" (id.).
Petitioner thereafter requested that the Department of Correctional Services recalculate hissentence to reduce his aggregate term to 12½ to 25 years. Petitioner's request wasdenied,[FN*]prompting petitioner to commence this CPLR article 78 proceeding. Supreme Court dismissedthe petition and this appeal ensued.
Petitioner argues that, pursuant to Penal Law § 70.30 (1) (a), because the sentenceimposed upon the manslaughter conviction must run concurrently with the sentence imposedupon the robbery conviction charging serious physical injury, and because each of the sentencesimposed for his robbery convictions must run concurrently with each other, it necessarily followsthat all of his sentences must run concurrently. The First Department has already rejectedpetitioner's argument (People v Lopez, 15 AD3d at 232), and the Court of Appealsdenied petitioner's motion for leave to appeal. Accordingly, petitioner's claims have been heardand rejected, and respondent correctly relied upon the result reached in the First Department'sdecision. If respondent were to have granted petitioner's request, respondent's actions would havebeen in direct conflict with the findings contained in a decision rendered by a court of competentjurisdiction.
Moreover, the result advocated by petitioner is not the type contemplated by Penal Law§ 70.30 (1) (a). To be sure, to adopt petitioner's position would result in his sentence beingdramatically reduced simply and solely because he had been convicted of committing a robberyduring which serious physical injury was inflicted upon a third party. Following petitioner'sargument to its logical conclusion, had he been acquitted of that charge, his sentence on hismanslaughter conviction could run consecutively with the sentences imposed on the two robberyconvictions that did not charge serious physical injury. Such a result surely was not the intent ofthe Legislature when it enacted Penal Law § 70.30 (1) (a) and would be at odds with theintent of the trial court that imposed petitioner's sentence (see People v Tanner, 30 NY2d102, 108 [1972]; People v Lewis, 268 AD2d 249 [2000], lv denied 95 NY2d 799[2000]; People v Hyde, 240 AD2d 849, 851-852 [1997], lv denied 91 NY2d 874[1997]).
Peters, J.P., Spain, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote *: However, by operation of PenalLaw § 70.30 (1) (e) (iv), his aggregate sentence of 25 to 50 years was reduced to 20 to 40years.