Opinion
06-09-2017
The PEOPLE of the State of New York, Respondent, v. Dominic DENNARD, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM:
Defendant appeals from an order that denied his motion pursuant to CPL 440.20 seeking to set aside the sentence imposed upon his conviction of two counts each of murder in the second degree (Penal Law § 125.25[3] [felony murder] ) and robbery in the first degree (§ 160.15 [2] ), and one count each of burglary in the first degree (§ 140.30[1] ) and criminal possession of a weapon in the second degree (former § 265.03[2] ), in connection with the armed robbery of four men, and the death of one of those victims. We previously affirmed the judgment of conviction (People v. Dennard, 39 A.D.3d 1277, 833 N.Y.S.2d 831, lv. denied 9 N.Y.3d 842, 840 N.Y.S.2d 769, 872 N.E.2d 882 ). We reject defendant's contention that the sentence was "unauthorized, illegally imposed or otherwise invalid as a matter of law" (CPL 440.20[1] ). Contrary to defendant's contention, the imposition of consecutive sentences for his conviction of robbery in the first degree, relating to the three surviving victims, and the felony murder predicated on robbery was proper (see Penal Law § 70.25[2] ; see generally People v. Parks, 95 N.Y.2d 811, 814–815, 712 N.Y.S.2d 429, 734 N.E.2d 741 ). Even assuming, arguendo, that the jury charge did not adequately specify which robbery served as the predicate offense for the count of felony murder, we conclude that the indictment explicitly stated that the robbery of the murder victim was the predicate offense (cf. People v. Davis, 68 A.D.3d 1653, 1655, 893 N.Y.S.2d 411, lv. denied 14 N.Y.3d 839, 901 N.Y.S.2d 146, 927 N.E.2d 567 ; People v. Parton, 26 A.D.3d 868, 870, 808 N.Y.S.2d 531, lv. denied 7 N.Y.3d 760, 819 N.Y.S.2d 886, 853 N.E.2d 257 ). We further conclude that the remaining consecutive sentences were lawful inasmuch as the conduct underlying the offenses for which those sentences were imposed constituted "separate and distinct acts" (People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212 ).It is hereby ORDERED that the order so appealed from is unanimously affirmed.