Opinion
0015/91.
Decided January 24, 2008.
MICHAEL C. GREEN, DISTRICT ATTORNEY, Kelly Christine Wolford, Esq. Attorney for People, SAYYED BASHER, Pro Se.
Defendant moves this Court pursuant to CPL § 440.20 for an Order setting aside the sentence imposed pursuant a conviction after trial pursuant to the principles enunciated in Apprendi v. New Jersey, 530 US 466, 490 (2000). Essentially, Defendant claims that his sentence to consecutive terms of imprisonment violated his Sixth Amendment right to a trial by jury. Defendant herein was convicted by a trial jury of felony-murder and robbery in the first degree with respect to the robbery and death of one person and was also convicted of robbery in the first degree and criminal possession of a weapon in the second degree with respect to the armed robbery of a second person. Defendant was subsequently sentenced to twenty-five years to life for the murder with a concurrent term of imprisonment of eight and one-third to twenty-five years for the underlying robbery and a consecutive eight and one-third to twenty-five years on the second robbery conviction and five to fifteen years for the weapons conviction to run concurrent with the second robbery sentence but consecutive to the murder and first robbery conviction.
DISCUSSION
Defendant's claim is without merit. In this case, the consecutive sentences were perforce based upon the jury's finding that defendant committed these "separate and distinct acts" for which consecutive sentences were authorized by statute, not based upon any additional fact-finding by the sentencing court. See People v. Grady , 40 AD3d 1368, 1375 (3rd Dept. 2007) leave denied 9 NY3d 923 (2007); People v. Murray , 37 AD3d 247 (1st Dept. 2007). The Court rendered a legal determination based upon facts already found by the jury and used its discretion to calculate an appropriate sentence. See Murray, 37 AD3d at 247. This an entirely proper function of the sentencing court, which does not violate a defendant's right to a trial by jury. If Defendant's argument were carried to its logical conclusion, he would have the trial jury engage in discretionary determinations, but that is not the proper role of juries in this state. Juries find facts and render verdicts.
Defendant provides no authority for his contention that his sentence to consecutive sentences based upon his convictions for separate and distinct crimes violated the principles outlined in Apprendi. Nothing in the record would support Defendant's bare contention that Penal Law (hereinafter "PL") § 70.25 somehow undermines the holding of Apprendi. In fact, as the People have argued, "[t]he existing authority [regarding PL § 70.25] is to the contrary." Grady, 40 AD3d at 1375. Moreover, the Defendant's entire argument is predicated on facts inapposite to those at play in Apprendi. In Apprendi, the facts concerned an increased penalty for the commission of a single offense based upon a factual determination of the sentencing court. In the matter at bar, Defendant did not receive any more than the statutory maximum for any one crime. The Defendant was sentenced based upon multiple crimes which arose out of two separate criminal transactions. Thus, Apprendi can provide no basis for relief under CPL § 440.20. To the extent that Defendant seeks an extension of the principles in Apprendi as they impact PL § 70.25, the Court is bound by stare decisis to follow the present rule in New York as expressed in Grady.
In short, PL § 70.25 and the sentence of the Court do not violate the Sixth Amendment to the United States Constitution. Defendant was properly sentenced to consecutive prison sentences based upon the jury's determination that he committed multiple crimes during separate criminal transactions. Defendant's motion to set aside his sentence is therefore denied in all respects. It is accordingly,
ORDERED that Defendant's motion to set aside the sentence is denied in all respects.
This Decision shall constitute the Order of the Court.