| People v Rivers |
| 2010 NY Slip Op 05031 [74 AD3d 995] |
| June 8, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Sherman Rivers, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Victor Barall ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling,J.), rendered April 18, 2007, convicting him of arson in the first degree (three counts), upon ajury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law and as a matter of discretion in the interestof justice, by vacating the sentences imposed on the convictions of arson in the first degree undercounts five and six of the indictment; as so modified, the judgment is affirmed, and the matter isremitted to the Supreme Court, Kings County, for resentencing on those convictions.
The evidence at trial established that the defendant engaged in a scheme to sell a certainbuilding that he did not own. He gained control of the building by means of a forged andfraudulently notarized deed, and then contracted to sell the building to a third party. When thepurchaser insisted that the building be delivered vacant, the defendant, on a number of occasions,paid other people to set fires in the building to drive the tenants out. After a jury trial, thedefendant was convicted of three counts of arson in the first degree, one relating to a fire on May25, 2004, and the other two relating to a fire on May 30, 2004.
Although certain questions asked by the prosecutor of certain witnesses at trial were clearlyimproper because, inter alia, they violated the Supreme Court's pretrial Molineux ruling(see People v Molineux, 168 NY 264 [1901]), reversal is not warranted because therewas overwhelming evidence of the defendant's guilt and no significant probability that thedefendant would have been acquitted absent those improper questions (see People vCrimmins, 36 NY2d 230, 242 [1975]). Moreover, any error with respect to the testimony ofone of the fire marshals regarding the origin of the second fire was harmless as well (seePeople v Crimmins, 36 NY2d at 242; People v Goldberg, 215 AD2d 402, 402-403[1995]).
The sentencing minutes indicate that the defendant's sentence on the count relating to the fireon May 25, 2004, was to run consecutively to the sentences imposed on the two counts of arsonin the first degree relating to the fire on May 30, 2004. The Supreme Court did not, however,state whether the [*2]two sentences imposed on the countsrelating to the fire on May 30, 2004, were to run concurrently with each other, as, in fact, thePenal Law requires (see Penal Law § 70.25 [2]; People v Laureano, 87NY2d 640, 643 [1996]). Moreover, the commitment and sentence sheet states that all threesentences were to run consecutively to each other. Such a discrepancy requires remittal forresentencing (see People v Pope, 74 AD3d 842 [2010]; People v Cano, 287AD2d 730 [2001]). Accordingly, we vacate the sentences imposed on the convictions of arson inthe first degree under counts five and six of the indictment, and remit the matter to the SupremeCourt, Kings County, for clarification of the discrepancy and thereafter for resentencing on thoseconvictions. Fisher, J.P., Angiolillo, Belen and Lott, JJ., concur.