GRACE, RICKY, PEOPLE v ( 2016 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1004
    KA 15-00646
    PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    RICKY GRACE, DEFENDANT-APPELLANT.
    KATHRYN FRIEDMAN, BUFFALO, FOR DEFENDANT-APPELLANT.
    MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DAVID A.
    HERATY OF COUNSEL), 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 jury verdict, of attempted murder in the second
    degree (three counts), assault in the first degree (three counts),
    criminal use of a firearm in the first degree (three counts) and
    criminal possession of a weapon in the second degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously modified on the law by directing that all of the sentences
    imposed shall run concurrently and as modified the judgment is
    affirmed.
    Memorandum: Defendant appeals from a judgment convicting him
    upon a jury verdict 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 the second degree (§ 265.03 [1] [b]). Defendant was
    sentenced to a determinate term of 10 years of imprisonment for each
    count of attempted murder and assault, as well as a determinate term
    of five years of imprisonment for each count of criminal use of a
    firearm and for the count of criminal possession of a weapon. Supreme
    Court directed that the sentences on the three counts of criminal use
    of a firearm in the first degree were to run concurrently to each
    other and consecutively to all other sentences, which were to run
    concurrently to each other.
    We note at the outset that the sentence imposed is illegal and
    thus the judgment must be modified accordingly. Although defendant
    has not raised this issue, his failure to do so “is of no moment,
    inasmuch as we cannot permit an illegal sentence to stand” (People v
    Terry, 90 AD3d 1571, 1572). “When more than one sentence of
    imprisonment is imposed on a person for two or more offenses committed
    -2-                          1004
    KA 15-00646
    through a single act or omission, or through an act or omission which
    in itself constituted one of the offenses and also was a material
    element of the other, the sentences . . . must run concurrently”
    (Penal Law § 70.25 [2]). Here, we conclude that the crime of criminal
    use of a firearm in the first degree arose out of the same criminal
    transaction as its underlying violent felony, i.e., the crime of
    attempted murder in the second degree (see People v Abdullah, 298 AD2d
    623, 624). Therefore, we modify the judgment by directing that the
    sentences imposed on the three counts of criminal use of a firearm in
    the first degree shall run concurrently with all other sentences (see
    § 70.25 [2]; see generally People v Shorter, 6 AD3d 1204, 1205-1206,
    lv denied 3 NY3d 648).
    Defendant failed to preserve for our review his contention that
    his sentence was a vindictive punishment for proceeding to trial (see
    People v Brown, 111 AD3d 1385, 1387, lv denied 22 NY3d 1155). In any
    event, that contention has been rendered academic by our decision to
    run all sentences concurrently, which was promised as part of the plea
    negotiations (see generally People v Eric P., 135 AD3d 882, 883-884).
    Defendant further contends that the court improperly refused to accept
    his plea when he attempted to plead guilty to the entire indictment.
    Subject to exceptions not relevant here (see CPL 220.10 [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 is academic (cf. People v Rosebeck, 109 AD2d 915,
    916). Here, defendant contends that he was prejudiced by this error
    (see e.g. People v Best, 132 AD2d 773, 775-776), due to an allegedly
    harsher sentence imposed after trial. In light of our determination
    to modify defendant’s sentence to what would have been imposed had he
    been allowed to accept the plea agreement, however, we conclude that
    the issue of prejudice, if any, flowing from the denial of defendant’s
    right to plead guilty to the entire indictment has been rendered
    academic (see generally Eric P., 135 AD3d at 883-884). Contrary to
    defendant’s further contention, the sentence is not unduly harsh or
    severe.
    In light of our determination to modify defendant’s sentence to
    that contained in the plea agreement, defendant’s contention that he
    was deprived of his right to effective assistance of counsel as a
    result of defense counsel’s alleged failure to prepare him adequately
    for the plea colloquy has also been rendered academic (see generally
    People v Wood, 37 AD3d 283, 284, lv denied 8 NY3d 992).
    Entered:   December 23, 2016                    Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 15-00646

Filed Date: 12/23/2016

Precedential Status: Precedential

Modified Date: 12/23/2016