| People v Mannino |
| 2011 NY Slip Op 08776 [89 AD3d 1105] |
| November 29, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v MarioMannino, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and AnneGrady of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, Richmond County(Rooney, J.), dated February 26, 2009, which denied, without a hearing, his motion pursuant to CPL440.20 to set aside so much of his sentence as imposed consecutive terms of imprisonment for hisconvictions of murder in the second degree, robbery in the first degree, and arson in the third degree.
Ordered that the order is affirmed.
The Supreme Court properly denied the defendant's motion pursuant to CPL 440.20 to set asideso much of his sentence as imposed consecutive terms of imprisonment for his convictions of murder inthe second degree (see Penal Law § 125.25 [3]), robbery in the first degree(see Penal Law § 160.15 [3]), and arson in the third degree (see Penal Law§ 150.10 [1]). The challenged consecutive sentences were imposed pursuant to the statutorysentencing scheme that requires concurrent sentences to be imposed "[w]hen more than one sentenceof imprisonment is imposed on a person for two or more offenses committed through a single act oromission, or through an act or omission which in itself constituted one of the offenses and also was amaterial element of the other" (Penal Law § 70.25 [2]), but allows for judicial discretion toimpose consecutive sentences "when separate offenses are committed through separate acts, [al]thoughthey are part of a single transaction" (People v Brown, 80 NY2d 361, 364 [1992]; see People v Battles, 16 NY3d 54,58-59 [2010], cert denied 565 US —, 132 S Ct 123 [2011]; People vRamirez, 89 NY2d 444, 451 [1996]; People v Brathwaite, 63 NY2d 839, 842-843[1984]). The defendant contends that this sentencing scheme was rendered unconstitutional byApprendi v New Jersey (530 US 466 [2000]) and its progeny (see e.g. Blakely vWashington, 542 US 296 [2004]; Cunningham v California, 549 US 270 [2007]). TheSupreme Court summarily denied the defendant's motion. The defendant, by permission, appeals. Weaffirm.
The defendant's contention that the procedure by which the Supreme Court determined that he waseligible for consecutive sentences violated the principles of Apprendi v New Jersey (530 US466 [2000]) is without merit (see Oregon v Ice, 555 US 160 [2009]; People v Cruz, 46 AD3d 567 [2007];[*2]People vBryant, 39 AD3d 768 [2007]; People v Pritchett, 29 AD3d 828 [2006]). Further, the Supreme Courtproperly imposed consecutive terms of imprisonment on one count of the defendant's felony murderconviction, and his robbery and arson convictions, since the offenses were separate and distinct acts,notwithstanding that they arose out of a single transaction (see People v Battles, 16 NY3d at58-59; People v Frazier, 16 NY3d36, 41 [2010]; People v Taveras,12 NY3d 21, 26-27 [2009]; People v Yong Yun Lee, 92 NY2d 987, 989 [1998];People v Laureano, 87 NY2d 640, 643 [1996]; People v Brown, 80 NY2d at 364;People v Marte, 52 AD3d 737,737-738 [2008], affd 12 NY3d 583 [2009], cert denied 559 US —, 130 S Ct1501 [2010]; People v Azaz, 41 AD3d610, 611 [2007], affd 10 NY3d 873 [2008]; People v Pritchett, 29 AD3d 828 [2006]; People v Lloyd, 23 AD3d 296,297-298 [2005]; cf. Penal Law § 70.25 [2]). Contrary to the defendant's contention,the Supreme Court did not engage in any fact-finding, but instead, implicitly made a legal determinationbased upon facts already found by the jury (see Oregon v Ice, 555 US 160 [2009]; People v Bridges, 63 AD3d 752[2009]; People v Azaz, 41 AD3d at 612).
The arguments raised by the defendant in his pro se supplemental brief are without merit. Prudenti,P.J., Eng, Belen and Sgroi, JJ., concur.