| People v Rodriguez |
| 2013 NY Slip Op 08353 [112 AD3d 488] |
| December 12, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Sergio Rodriguez, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Eleanor J. Ostrow of counsel), forrespondent.
Judgment of resentence, Supreme Court, New York County (Edward J. McLaughlin,J.), rendered May 23, 2012, resentencing defendant to consecutive terms of 25 years onhis conviction of robbery in the first degree and 15 years on his conviction of assault inthe first degree, unanimously affirmed.
On a prior appeal (People vRodriguez, 79 AD3d 644 [1st Dept 2010], affd 18 NY3d 667 [2012]),this Court determined that certain sentences that the trial court had imposedconsecutively should have been imposed concurrently. We remanded the matter in orderto permit the trial court, if so inclined, to restructure the sentences to arrive at the sameaggregate term it had previously imposed.
On remand, the resentencing court lawfully imposed consecutive sentences for aconviction of first-degree robbery (based on display of a firearm [Penal Law §160.15 (4)]) and a conviction of first-degree assault. As we have previously determined(79 AD3d at 645-646), the fact that those sentences had originally been imposedconcurrently did not result in a violation of CPL 430.10, even though defendant'ssentences had already commenced. Furthermore, the consecutive terms did not violatePenal Law § 70.25 (2), because the robbery conviction was based on defendant'sdisplay of something appearing to be a firearm (which proved to be an actual firearm),and the assault count was based on defendant's separate act of shooting the victim (79AD3d at 645; see also People v Ramirez, 89 NY2d 444 [1996]).
As did the Court of Appeals on the prior appeal, we reject defendant's argument thatCPL 430.10 "would bar an appellate court from directing resentencing on all countswhere the sentence on fewer than all of the counts was flawed" (see 18 NY3d at671). The sentence now under appeal was therefore authorized by law.
Defendant's argument that the consecutive terms violated Penal Law § 70.30(1) (a) is also without merit. That statute "was not intended to restrict the number orlength of the sentences that may be imposed, but merely to direct how the aggregatelength of those sentences should be calculated" (Matter of Roballo v Smith, 63NY2d 485, 489 [1984]). Accordingly, sentences may run consecutively to each othereven though each of those sentences is required to run concurrently with the same thirdsentence (Matter of Lopez vGoord, 51 AD3d 1231 [3d Dept 2008], lv denied 11 NY3d 708 [2008];People v Lopez, 15 AD3d232 [1st Dept 2005], lv denied 4 NY3d 888[*2][2005]).
The imposition of consecutive sentences was an appropriate exercise of discretion.Although the resentencing court was not required to consider defendant's allegedrehabilitative progress while incarcerated (see People v Kuey, 83 NY2d 278,282-283 [1994]), it did, in fact, remark on such progress, but reasonably concluded that itwas outweighed by the extreme heinousness of defendant's crime (the circumstances ofwhich are set forth in the concurring memorandum on the prior appeal [79 AD3d at646]).
We have considered and rejected each of defendant's constitutional arguments.Concur—Mazzarelli, J.P., Sweeny, DeGrasse, Manzanet-Daniels and Feinman, JJ.