| People v Povoski |
| 2013 NY Slip Op 07372 [111 AD3d 1350] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v FrankJ. Povoski, Jr., Appellant. |
—[*1] Frank J. Povoski, Jr., defendant-appellant pro se.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe Fourth Judicial Department, from an order of the Ontario County Court (Craig J.Doran, J.), dated October 14, 2011. The order denied the motion of defendant to set asidehis sentence pursuant to CPL 440.20.
It is hereby ordered that the order so appealed from is unanimously modified on thelaw by granting the motion in part and directing that all sentences shall run concurrentlyand as modified the order is affirmed.
Memorandum: Defendant appeals from an order denying his motion pursuant to CPL440.20 seeking to set aside the sentence imposed with respect to his conviction ofrobbery in the second degree (Penal Law § 160.10 [2] [a]), forgery in the seconddegree (§ 170.10 [1]), and assault in the second degree (§ 120.05 [6]).County Court directed that the sentence on the robbery count shall run consecutively tothe sentence imposed on the forgery count, and that those sentences shall runconcurrently with the sentence imposed on the assault count.
We note at the outset that the court erred in denying the motion on the ground thatdefendant could have raised this issue on his direct appeal. Mandatory denial of a motionpursuant to CPL 440.20 is required only when the issue "was previously determined onthe merits upon an appeal from the judgment or sentence" (CPL 440.20 [2]), which inthis case it was not (People vPovoski, 55 AD3d 1221, 1221-1222 [2008], lv denied 11 NY3d 929[2009]). The court erred in conflating the provisions of CPL 440.10 with those of CPL440.20. The procedural bar set forth in CPL 440.10 (2) (c) "applies only to motions madepursuant to section 440.10, and it is undisputed that the instant motion was madepursuant to section 440.20" (People v McCants, 15 AD3d 892, 893 [2005]).
We agree with defendant that the consecutive sentences for the robbery and forgerycounts are illegal under the facts of this case. The indictment and charge to the jury setforth that either count could serve as the predicate for the count of felony assault, andthus the predicate counts must run concurrently with the count of felony assault (seePeople v Parks, 95 NY2d 811, 814-815 [2000]; People v Davis, 68 AD3d 1653, 1655 [2009], lvdenied 14 NY3d 839 [2010]; People v Ahedo, 229 [*2]AD2d 588, 589-590 [1996], lv denied 88 NY2d964 [1996]). The sentences imposed on the counts of robbery and forgery must thereforealso run concurrently (see People v Dickens, 269 AD2d 463, 464 [2000], lvdenied 95 NY2d 852 [2000]; see also Parks, 95 NY2d at 814-815). Wetherefore modify the order by granting the motion in part and directing all sentences torun concurrently (see People vLemon, 38 AD3d 1298, 1299 [2007], lv denied 9 NY3d 846 [2007],lv denied on reconsideration 9 NY3d 962 [2007]; People v Parton, 26 AD3d868, 870 [2006], lv denied 7 NY3d 760 [2006]; see generally People vLaSalle, 95 NY2d 827, 829 [2000]). Present—Centra, J.P., Fahey, Carni,Sconiers and Valentino, JJ.