| People v Grace |
| 2016 NY Slip Op 08636 [145 AD3d 1462] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRicky Grace, Appellant. |
Kathryn Friedman, Buffalo, for defendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (David A. Heraty ofcounsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang,J.), rendered November 26, 2014. The judgment convicted defendant, upon a juryverdict, of attempted murder in the second degree (three counts), assault in the firstdegree (three counts), criminal use of a firearm in the first degree (three counts) andcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by directing that all of the sentences imposed shall run concurrently and asmodified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of three counts each of attempted murder in the second degree (Penal Law§§ 110.00, 125.25 [1]), assault in the first degree(§ 120.10 [1]), and criminal use of a firearm in the first degree(§ 265.09 [1] [a]), and one count of criminal possession of a weapon in thesecond degree (§ 265.03 [1] [b]). Defendant was sentenced to a determinateterm of 10 years of imprisonment for each count of attempted murder and assault, as wellas a determinate term of five years of imprisonment for each count of criminal use of afirearm and for the count of criminal possession of a weapon. Supreme Court directedthat the sentences on the three counts of criminal use of a firearm in the first degree wereto run concurrently to each other and consecutively to all other sentences, which were torun concurrently to each other.
We note at the outset that the sentence imposed is illegal and thus the judgment mustbe modified accordingly. Although defendant has not raised this issue, his failure to doso "is of no moment, inasmuch as we cannot permit an illegal sentence to stand" (People v Terry, 90 AD3d1571, 1572 [2011]). "When more than one sentence of imprisonment is imposed ona person for two or more offenses committed through a single act or omission, or throughan act or omission which in itself constituted one of the offenses and also was a materialelement of the other, the sentences . . . must run concurrently" (Penal Law§ 70.25 [2]). Here, we conclude that the crime of criminal use of a firearmin the first degree arose out of the same criminal transaction as its underlying violentfelony, i.e., the crime of attempted murder in the second degree (see People vAbdullah, 298 AD2d 623, 624 [2002]). Therefore, we modify the judgment bydirecting that the sentences imposed on the three counts of criminal use of a firearm inthe first degree shall run concurrently with all other sentences (see§ 70.25 [2]; seegenerally People v Shorter, 6 AD3d 1204, 1205-1206 [2004], lv denied3 NY3d 648 [2004]).
Defendant failed to preserve for our review his contention that his sentence was avindictive punishment for proceeding to trial (see People v Brown, 111 AD3d 1385, 1387 [2013], lvdenied 22 NY3d 1155 [2014]). In any event, that contention has been renderedacademic by our decision to run all sentences concurrently, which was promised as partof the plea negotiations (seegenerally People v Eric P., 135 AD3d 882, 883-884 [2016]). Defendant furthercontends that the court improperly refused to accept his plea when he attempted to pleadguilty to the entire indictment. Subject to exceptions not relevant here (see CPL220.10 [5]), a defendant has a statutory right to plead guilty to the entire indictment(see CPL 220.10 [2]), but reversal is not required where, as here, the issue isacademic (cf. People v Rosebeck, 109 AD2d 915, 916 [1985]). Here, defendantcontends that he was prejudiced by this error (see e.g. People v Best, 132 AD2d773, 775-776 [1987]), due to an allegedly harsher sentence imposed after trial. In light ofour determination to modify defendant's sentence to what would have been imposed hadhe been allowed to accept the plea agreement, however, we conclude that the issue ofprejudice, if any, flowing from the denial of defendant's right to plead guilty to the entireindictment has been rendered academic (see generally Eric P., 135 AD3d at883-884). Contrary to defendant's further contention, the sentence is not unduly harsh orsevere.
In light of our determination to modify defendant's sentence to that contained in theplea agreement, defendant's contention that he was deprived of his right to effectiveassistance of counsel as a result of defense counsel's alleged failure to prepare himadequately for the plea colloquy has also been rendered academic (see generally People v Wood,37 AD3d 283, 284 [2007], lv denied 8 NY3d 992 [2007]).Present—Centra, J.P., Carni, Lindley, Curran and Scudder, JJ.