On 3 May 1995, defendant was convicted of two counts of Robbery in the First Degree, six counts of Robbery in the Second Degree, one count of Assault in the Second Degree, one count of Criminal Possession of Stolen Property in the Fifth Degree, and two counts of Criminal Possession of a Weapon in the Fourth Degree.
On 15 May 1995, defendant was sentenced, as a second violent felony offender, to an indeterminate term of imprisonment of ten to twenty years for each Robbery in the First Degree conviction, an indeterminate term of imprisonment of seven and one-half to fifteen years on five of the six counts of Robbery in the Second Degree, an indeterminate term of imprisonment of three and one-half to seven years on the Assault in the Second Degree conviction, one year determinate on the Criminal Possession of Stolen Property in the Fifth Degree conviction, and one year determinate for both Criminal Possession of a Weapon in the Fourth Degree counts.
The sentencing Court ran the two Robbery in the First Degree sentences, and two of the Robbery in the Second Degree sentences consecutive to one another, for a total indeterminate sentence of thirty-five (35) to seventy (70) years.
The remaining counts were to run concurrently to the four counts that the Court ran consecutively to one another.
A New York Criminal Lawyer said that subsequently, defendant filed an appeal. It was found that the sentencing Court had mistakenly failed to sentence defendant on one of the six Robbery in the Second Degree counts; remitted the case back to Supreme Court for defendant to be resentenced on all six of the Robbery in the Second Degree counts.
On 8 April 1998, defendant appeared in Supreme Court for resentencing on the Robbery in the Second Degree counts.
The Court sentenced defendant on those counts only and maintained its earlier sentence with the exception that defendant was sentenced on the previously missing count of Robbery in the Second Degree to an indeterminate term of imprisonment of seven and one-half to fifteen years to run consecutively to the four counts that were previously run consecutively to one another.
A Brooklyn Criminal Lawyer said the defendant’s new sentence was an indeterminate term of imprisonment of forty-two and one-half (42 ½) to eighty-five (85) years.
Defendant filed an appeal following his resentence arguing that it was excessive.
The appeal was denied and the resentence affirmed.
On 20 June 2006, defendant moved pro se, to set aside his sentence on the grounds that: (1) he was unlawfully adjudicated a second violent felony offender because his predicate offense was not a violent felony; and (2) he was denied a hearing after informing the Court that he wished to challenge the constitutionality of his predicate felony offense.
On 3 November 2006, the Court denied defendant’s first assertion that his predicate felony was not a violent felony, but did grant defendant a hearing to challenge the constitutionality of his predicate felony conviction.
On 27 April 2007, the motion to vacate defendant’s sentence was denied.
Defendant now moves pro se, for an order setting aside his sentence. Defendant contends that: (1) the resentencing Court exceeded the mandate of the Second Department by resentencing defendant on the Robbery in the First Degree counts by running the previously omitted Robbery in the Second Degree count consecutive to those counts; (2) the resentencing Court acted vindictively, and impermissibly, by increasing the aggregate sentence from thirty-five (35) to seventy (70) years to forty-two and one-half (42 ½) to eighty-five (85) years by running the previously omitted count consecutive to the other counts; and (3) the resentencing Court did not allow defendant to speak and failed to inquire of defendant if he wished to speak at his resentencing.
Here, defendant makes three claims for the first time which he failed to raise in either of his previous two appeals or his previously filed motion.
Criminal Procedure Law provides the grounds for which the Court “must” and “may” deny a motion to set aside a sentence on procedural grounds. A motion to set aside is procedurally barred where the grounds have previously been decided. Despite defendant’s numerous filing in association with the case, he has not raised these issues in his previous appeals or his previous motion to set aside, and therefore, the Court will consider each ground for relief submitted by defendant on the merits.
First, defendant contends that the resentencing Court exceeded the mandate of the Second Department’s decision in one case.
The contention is entirely without merit.
The sentencing minutes are clear that defendant was not being resentenced on any counts other than the Robbery in the Second Degree counts. The defendant was convicted of six counts of Robbery in the Second Degree, but was only sentenced on five counts of Robbery in the Second Degree. The sentences imposed on the defendant for the remaining counts he was convicted of still stand. Furthermore, defendant’s contention that the resentencing Court somehow resentenced defendant the Robbery in the First Degree counts by running the previously omitted count of the Robbery in the Second Degree consecutive to those counts is not supported by any legal authority, the court file, or the resentencing minutes.
Second, defendant contends that the resentencing Court acted vindictively when it ran the sentence of the previously omitted Robbery in the Second Degree count consecutive to the other counts and increased his aggregate sentence from thirty-five (35) to seventy (70) years to forty-two (42½) to eighty-five (85) years.
The Court acknowledges the well settled principle that criminal defendants should not be penalized for exercising their right to appeal. Explaining further, the Court of Appeals has held, “In order to insure that trial courts do not impose longer sentences to punish defendant for taking an appeal, a presumption of vindictiveness generally arises when defendants who have won appellate reversals are given greater sentences after their retrials than were imposed after their initial convictions.
Here, the reviewing authority did not reverse the convictions on any counts, and thus no retrial was held. The Second Department vacated the five Robbery in the Second Degree sentences because the sentencing Court mistakenly failed to sentence defendant on all six Robbery in the Second Degree convictions. The Court did not increase the defendant’s sentence after retrial on the same charges, which would carry the presumption of vindictiveness, but entered a legal sentence on all of the convictions for the first time. Inasmuch as the prior sentences imposed were vacated as illegal, no presumption of vindictiveness attaches to resentencing. Undoubtedly, defendant has failed to establish that the resentencing was vindictive.
Finally, defendant contends that he was not afforded the right to speak at his resentencing in violation of law.
The Court of Appeals has clearly held that it is not error for the sentencing court not to follow the literal dictates of the law, if it substantially complies with the mandates therein.
Here, defendant’s counsel made a statement on his behalf at the resentence and never alerted the Court that defendant had anything to say. Defendant does not now allege that he had a statement to make to the Court at the resentencing. The resentencing Court therefore substantially complied with the mandates of the law, in accord with the Court of Appeals precedent in two cases, and defendant’s claim is without merit.
Insofar as defendant’s motion raised issues that the Court was able to address by reviewing the submissions of the parties and the court file, including the records of defendant’s two appeals, there is no need for the Court to conduct a hearing on such matter.
Consequently, defendant’s motion to set aside his sentence is denied.
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