Opinion
9244 9244A Ind. 104/16 1839/16
05-09-2019
The PEOPLE of the State of New York, Respondent, v. Mohamed DIABY, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Aaron Zucker of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Aaron Zucker of counsel), for respondent.
Sweeny, J.P., Gische, Tom, Gesmer, Singh, JJ.
Judgments, Supreme Court, New York County (Ellen N. Biben, J.), rendered June 13, 2017, as amended July 5, 2017, convicting defendant, upon his pleas of guilty, of robbery in the first degree and attempted robbery in the second degree, and sentencing him to consecutive terms of five years and two years, respectively, unanimously affirmed.
Defendant did not preserve his claim that the court misapprehended whether it had discretion to impose concurrent sentences (see e. g. People v. Hamlet, 227 A.D.2d 203, 642 N.Y.S.2d 254 [1st Dept. 1996], lv denied 88 N.Y.2d 1021, 651 N.Y.S.2d 20, 673 N.E.2d 1247 [1996] ), and we decline to review it in the interest of justice. "While defendant characterizes his claim as one of unlawful sentencing, he is essentially arguing that a substantively lawful sentence was imposed by way of a defective procedure, and such claims require preservation. As a result of the lack of preservation, the court was never called upon to clarify its statement as to sentence" ( People v. Giacchi, 154 A.D.3d 544, 545, 61 N.Y.S.3d 895 [1st Dept. 2017] [citation omitted] ). As an alternative holding, we find that defendant's assertion that the court believed it was legally required to impose consecutive sentences rests on a speculative inference from the court's remarks. In any event, "remand for resentencing is unwarranted because the record fails to indicate any possible harm flowing from the court's alleged error" ( id. ).
We perceive no basis for reducing the sentence.