AD1: Correction of illegal aggregate sentence permits restructuring of component sentences

To correct an illegal aggregate sentence, an intermediate appellate court may restructure the component lawful and offending sentences such that the lawful result resembles the original aggregate sentence.

In People v. Rodriguez (1st Dept. 12/28/2010), Defendant was convicted by a jury of Attempted Murder 2°, Assault 1°, Robbery 2°, and two counts of Robbery 1°, and sentenced as a second violent offender to an aggregate term of 40 years.  The demarcation of the aggregate sentence was 25 years for Attempted Murder 2° consecutive to 15 years for Assault 1°.  The other sentences were to be served concurrently with each other and with the consecutive term.  The additional sentences consisted of 25 years for each count of Robbery 1° and 15 years for Robbery 2°.  On appeal, Defendant challenged the legality of the aggregate sentence. Penal Law § 70.25 provides that sentences for related offenses may not run consecutively where a single act constitutes: (1) multiple offenses; or (2) one of the offenses and a material element of the other offense.  The People conceded, and the First Department held, that the assault and attempted murder sentences stemmed from the same acts and therefore could not be imposed consecutively.  The First Department remanded so that the trial court could realign the sentences to lawfully arrive at the intended aggregate sentence.  Defendant argued for an interpretation of CPL § 430.10 that would preclude the trial court from altering the three concurrent sentences.

CPL § 430.10 provides that once a lawful sentence of imprisonment has commenced it may not be altered unless specifically authorized by law.  The First Department cited People v. Montel, 704 N.Y.S.2d 462 (N.Y. App. Div. 1st Dep't 2000), for the precedent of vacating illegal consecutive sentences and remanding so that concurrent sentences could be imposed consecutively to reflect the intended aggregate sentence.  The First Department indicated that the procedure set forth in Montel was proper as long as the corrected aggregate sentence did not exceed the original aggregate sentence.  Additionally, the First Department held that § 430.10 was not violated because no individual sentence would be altered on remand; instead,  only the order of sentences would be changed.

In a concurrence, Justice McGuire emphasized the challenges courts face when sentencing multiple defendants for multiple charges.  Justice McGuire noted that the Supreme Court held in Bozza v. United States, 330 U.S. 160, 166-167 (1947), that “[t]he Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.”  In contrast with the majority, Justice McGuire noted that § 430.10 is only applicable where the entire aggregate sentence is lawful, and thus because the original aggregate sentence at issue here was illegal the trial court was free to restructure the underlying sentences.  Finally, Justice McGuire pointed out that if Defendant were permitted to prevail his aggregate sentence would be equivalent to the aggregate sentence of his far less culpable accomplice, a result that Justice McGuire found would deprive him of a just sentence.  (MM/LC)

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