| People v Rodriguez |
| 2010 NY Slip Op 09561 [79 AD3d 644] |
| December 28, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v SergioRodriguez, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered October 15,2008, convicting defendant, after a jury trial, of attempted murder in the second degree, assault in thefirst degree, robbery in the first degree (two counts), and robbery in the second degree, and sentencinghim, as a second violent felony offender, to an aggregate term of 40 years, modified, on the law, to theextent of directing that the sentences for the attempted murder and assault convictions be servedconcurrently, the matter remanded to the trial court for resentencing, and otherwise affirmed.
Defendant's challenges to the People's summation are unpreserved, and we decline to review themin the interest of justice. As an alternative holding, we also find that the challenged portions of thesummation constituted permissible comment (see generally People v Overlee, 236 AD2d 133[1997], lv denied 91 NY2d 976 [1998]) on the victim's demeanor when he entered thecourtroom and saw defendant. The prosecutor specifically called on the jurors to rely on their ownobservations of the victim's demeanor. Defendant's related ineffective assistance of counsel claim iswithout merit.
As the People concede, the court should have imposed concurrent sentences for the attemptedmurder and assault convictions because there is no basis for finding that these crimes were committedthrough separate acts. "[S]entences imposed for two or more offenses may not run consecutively: (1)where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses anda material element of the other" (People v Laureano, 87 NY2d 640, 643 [1996]; seePenal Law § 70.25 [2]). In this case, the facts do not support any conclusion other than that thecrimes of assault and attempted murder were effected through the same acts.
Nevertheless, we remand the matter to the trial court so that it may restructure the sentences toarrive lawfully at the aggregate sentence which it clearly intended to impose upon defendant, who wasthe actual shooter, and thus deserving of greater punishment than his accomplices. One of the tworobbery counts of which defendant was convicted charged him with forcible stealing of property whiledisplaying a firearm (Penal Law § 160.15 [4]). It is self-[*2]evident that defendant's display of a gun during the robbery, on the onehand, and his actual shooting of the victim, on the other, arise from separate acts, and are thus notsubject to the strictures of Penal Law § 70.25 (2).
This Court has, on at least one prior occasion, vacated illegal consecutive sentences, but remandedthe case for resentencing, so that sentences on other counts which were initially run concurrently, couldbe imposed consecutively so as to reflect the court's intended sentencing scheme (see People vMontel, 269 AD2d 293, 294 [2000], lv denied 95 NY2d 800 [2000]). Defendantcontends that Montel is inapplicable because the convictions resulted from a negotiated plea.This distinction is meaningless. As the Court of Appeals has observed, when illegal sentences arecorrected, and a defendant resentenced in accordance with statutory prescriptions, a colorableargument only arises if his "sentence had been increased beyond his legitimate expectations of what thefinal sentence should be" (People v Williams, 87 NY2d 1014, 1015 [1996]). As long asdefendant's aggregate sentence in this case is not increased beyond what the court originally intended toimpose, he will face no jeopardy from having taken an appeal.
To the extent the Second Department's decision in People v Romain (288 AD2d 242[2001], lv denied 98 NY2d 640 [2002]) suggests that a different result is warranted, wedecline to follow its reasoning.
Nor are this Court's decisions in People vRosado (28 AD3d 215 [2006]) and People v Davis (12 AD3d 237 [2004], appeal withdrawn 4NY3d 762 [2005]) inconsistent with the result reached herein. In both of those cases the People soughtresentencing to adjust the individual sentences themselves so that the aggregate sentence need not bereduced, which procedure would run afoul of CPL 430.10 ("when the court has imposed a sentence ofimprisonment and such sentence is in accordance with law, such sentence may not be changed,suspended or interrupted once the term or period of the sentence has commenced"). In this case, thePeople seek resentencing only to realign which sentences are to run consecutively, not to disturb any ofthe individual sentences. Concur—Nardelli, J.P., Acosta, Freedman and RomÁn, JJ.
McGuire, J., concurs in a separate memorandum as follows: I agree with the majority'smemorandum but write separately to emphasize certain points. At the outset of the gunpoint robberycommitted by defendant and his two accomplices, defendant brandished a gun and demanded thevictim's gold chain. Even though the victim was in the act of complying with that demand, defendantshot him in the leg. Defendant's gratuitous and brutal violence only escalated from that point. As thevictim continued his efforts to take off the chain, defendant shot him in the torso. The victim fell against afence and defendant shot him a third time, in the back. The second bullet created multiple holes in thevictim's bowel; the third bullet lodged in his vertebrae and caused severe spinal cord injury.Miraculously, the victim survived. But although he eventually may be able to walk with the assistance ofbraces, he will be wheelchair bound for the rest of his life when outside the home.
Defendant was convicted by a jury of attempted murder in the second degree, assault in [*3]the first degree, robbery in the first degree (two counts) and robbery inthe second degree. Victor Perez, his jointly tried accomplice, was the one who actually took the chainand other property from the victim; he was acquitted of the attempted murder and first-degree assaultcharges but convicted of two counts of first-degree robbery and one count of second-degree robbery.(Prior to trial, the second accomplice pleaded guilty to second-degree robbery.) As defendant hadbeen convicted of second-degree assault little more than a year before the commission of this crime, hewas sentenced as a second violent felony offender. For the attempted murder and first-degree assaultconvictions he was sentenced to consecutive terms of 25 years and 15 years, respectively; he also wassentenced to two terms of 25 years for the first-degree robbery convictions and one term of 15 yearsfor the second-degree robbery conviction, with these three terms running concurrently with each otherand with the sentences for the attempted murder and first-degree assault convictions. Perez, also asecond violent felony offender, was sentenced to concurrent terms of 25 and 15 years for, respectively,the first and second-degree robbery convictions. Thus, defendant's aggregate sentence was a richlydeserved 40 years; his much less culpable accomplice, who was not armed with a weapon, did nothimself commit any violent acts and was acquitted of the attempted murder and first-degree assaultcharges, received an aggregate sentence of 25 years.
In sentencing defendant, Supreme Court made a mistake. Penal Law § 70.25 (2) requiresconcurrent sentences when two or more crimes are committed though a single act. As the Peopleappropriately concede, although consecutive sentences for attempted murder and assault crimes arisingfrom repeatedly shooting the same victim may be authorized in a particular case, the record here doesnot disclose sufficient facts from which it could be concluded that one gunshot constituted the attemptedmurder and another the first-degree assault (see People v Parks, 95 NY2d 811 [2000]).Accordingly, the sentences for these crimes should have been made to run concurrently. However, thesentence for either the second-degree robbery conviction or for one of the first-degree robberyconvictions, the one predicated on the display of what appears to be a pistol (Penal Law §160.15 [4]), lawfully can run consecutively either to the first-degree assault or the attempted murderconviction. Thus, the aggregate sentence of 40 years that was imposed is one that is authorized by thePenal Law.
The question in this case then is what is permissible when the illegal sentence is corrected. Has theLegislature mandated that the only permissible corrective action is to direct that the sentences on thesetwo components of the sentence (the sentences for attempted murder and first-degree assault) runconcurrently? Even if Supreme Court determined that it intended to impose an aggregate sentence of 40years and did not make a considered determination that no other consecutive sentences wereappropriate, is Supreme Court precluded from restructuring the sentence so as to impose the sameaggregate sentence or even one that is less than the original sentence but entails consecutive sentencesnot previously imposed?
In my view, the only reasonable answer to that question is no. In the first place, no statute requiresa yes answer. CPL 430.10 provides that, "[e]xcept as otherwise specifically authorized by law, whenthe court has imposed a sentence of imprisonment and such sentence is in accordance with law,such sentence may not be changed, suspended or interrupted once the term or period of the sentencehas commenced" (emphasis added). A necessary condition to the application of this prohibition is thatthe sentence at issue be a lawful one. Components of the sentence are lawful, but the syntax of thestatute makes clear that the entire sentence is considered to be the "sentence of imprisonment." BecauseSupreme Court imposed a sentence [*4]of imprisonment "and suchsentence is [not] in accordance with law," I would conclude that the prohibition is inapplicable.
Moreover, determining when consecutive sentences are prohibited can be exceedingly difficult. Anapt illustration is provided by People vRosas (8 NY3d 493 [2007]), in which a divided Court of Appeals concluded that thesentences had to run concurrently, with Judge Graffeo, joined by Judges Read and Pigott, concludingthat consecutive sentences were authorized (see People v McKnight, 16 NY3d43 [2010]). As the Legislature surely was mindful both of thedifficulties judges would sometimes face and of the enormous importance to the People of a justsentence, it makes no sense to think the Legislature intended that judges have only one chance ofgetting it right. The United States Supreme Court has made much the same point: "[t]he Constitutiondoes not require that sentencing should be a game in which a wrong move by the judge means immunityfor the prisoner" (Bozza v United States, 330 US 160, 166-167 [1947]). In multiple defendantcases like this one, furthermore, the conclusion that this one wrong move by Supreme Court immunizesdefendant from having any of the underlying sentences run consecutively would be at odds with thefundamental precept of justice that like cases should be treated alike. It can mandate that unlike casesbe treated as like cases; despite defendant's far greater culpability and moral blameworthiness, hewould get the same sentence as Perez, 25 years.
Although I think it self-evident that Supreme Court did not intend such an extraordinarily unjustresult, the more important point is that we should have a strong basis in the text of a statute to concludethat the Legislature intended judges to have only one chance of getting it right. The statutory text is tothe contrary (see Penal Law § 5.00 ["the provisions herein must be construed accordingto the fair import of their terms to promote justice and effect the objects of the law"]). And as thePeople point out, CPL 470.20 also is relevant here. It states: "[u]pon reversing or modifying ajudgment, sentence or order of a criminal court, an intermediate appellate court must take or direct suchcorrective action as is necessary and appropriate both to rectify any injustice to the appellant resultingfrom the error or defect which is the subject of the reversal or modification and to protect the rights ofthe respondent." This is plainly a grant of discretionary authority to intermediate appellate courts andnothing in the Penal Law requires that it be read stingily in this context. But to accept defendant'sposition means that whenever judges make sentencing errors like this one, nothing can be done toprotect the rights of the People, regardless of how profound the injustice may be.
Although the Court of Appeals apparently has not addressed the issue, our decision in People vMontel (269 AD2d 293 [2000], lv denied 95 NY2d 800 [2000]) is on point, as is theSecond Department's decision in People v Romain (288 AD2d 242 [2001], lv denied98 NY2d 640 [2002]). These two decisions come to opposite conclusions and defendant urges thatwe should not follow our own precedent in People v Montel because the erroneously imposedconsecutive sentences were imposed not after a trial but after the defendant's guilty plea. The heart ofdefendant's argument, however, is that CPL 430.10 precludes any change to the sentence other thanwhat is absolutely necessary to correct the specific error in a component or components of thesentence. If that argument is correct, it applies equally when consecutive sentences are erroneouslyimposed following a guilty plea or a trial. For the reasons stated [*5]above, I think the argument is incorrect and we should follow Peoplev Montel.
Our decisions in People v Davis (12AD3d 237 [2004]) and People vRosado (28 AD3d 215 [2006]) are distinguishable as they address a different problem. If, forexample, a defendant is sentenced to two consecutive terms of five years (so that the aggregatesentence is 10 years) but only concurrent sentences are lawful, People v Davis and Peoplev Rosado preclude either or both of the concurrent sentences that are imposed on resentencingfrom exceeding the five-year terms originally imposed. That is not to deny that there is tension between,on the one hand, People v Montel and, on the other, People v Davis and People vRosado. But we need not grapple with that tension to decide this appeal. Suffice it to say that whena judge directs sentences to run consecutively, it may be reasonable to presume that the period ofincarceration specified for each conviction (including those for any additional sentences which are madeto run concurrently) represents a considered determination by the judge, but less reasonable to presumethat a direction that the sentence for one or more additional convictions shall run concurrently with thesentences running consecutively represents a considered determination. After all, in the latter situationthat direction may be compelled by an antecedent conclusion that the consecutive sentences result in theappropriate aggregate sentence.
Finally, defendant offers an independent argument based on the Second Department's decision inPeople v Losicco (276 AD2d 565 [2000], lv denied 96 NY2d 802 [2001]) that theimposition of concurrent sentences only is required by Penal Law § 70.30 (1) (a). As defendantforthrightly recognizes, the Third Department not only has rejected that argument but has read ourdecision in People v Lopez (15 AD3d232 [2005], lv denied 4 NY3d 888 [2005]) to have rejected it as well (Matter of Lopez v Goord, 51 AD3d1231 [2008], lv denied 11 NY3d 708 [2008]). In any event, I would not reach thisargument as defendant raises it for the first time in his reply brief.