Summary
In LaSalle, the People argued that the Appellate Division, upon finding a sentence to be illegally consecutive, had no power under CPL 470.20 to reform the illegality on its own and was instead obligated to vacate the sentence and remit for resentencing by the trial court (id.).
Summary of this case from People v. BarthelOpinion
Argued June 6, 2000.
Decided June 29, 2000.
APPEAL, by permission of the Chief Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered February 22, 1999, which modified, on the law, and, as modified, affirmed a judgment of the Supreme Court (Nicholas Colabella, J.), rendered in Westchester County convicting defendant of sodomy in the first degree, criminal use of a firearm in the first degree, assault in the second degree, criminal possession of a weapon in the third degree, unlawful imprisonment, and assault in the third degree following a nonjury trial, and imposing consecutive indeterminate terms of 7 1/2 to 15 years' imprisonment for sodomy in the first degree and criminal use of a firearm in the first degree, to run concurrently with indeterminate terms of 2 to 4 years' imprisonment for assault in the second degree and criminal possession of a weapon in the third degree, an indeterminate term of 1 1/2 to 3 years' imprisonment for unlawful imprisonment, and a determinate term of 1 year of imprisonment for assault in the third degree. The modification consisted of deleting the provision imposing consecutive indeterminate terms of imprisonment and substituting therefor a provision that all of the sentences shall run concurrently to one another.
Jeanine Pirro, District Attorney of Westchester County, White Plains (Richard Longworth Hecht and Richard E. Weill of counsel), for appellant.
Kevin P. Gilleece, for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed. In this case, the Appellate Division ruled that the trial court "erred in imposing consecutive sentences for the defendant's convictions of sodomy in the first degree and criminal use of a firearm in the first degree since both convictions arose out of a single incident" ( 258 A.D.2d 668, 669). Its order modified the judgment by "deleting the provision thereof imposing consecutive indeterminate terms of imprisonment and substituting therefor a provision that all of the sentences shall run concurrently to one another" ( id .). The sole issue raised in the People's appeal is whether, under CPL 470.20, the Appellate Division's only available corrective action on the illegal sentence was to remit for resentencing by the trial court. To the contrary, an intermediate appellate court, in exercising its responsibility under CPL 470.20 to take "such corrective action as is necessary and appropriate," has the discretion, upon reversing or modifying a sentence, either to remit to the trial court for resentencing or to substitute its own legal sentence for the illegally imposed sentence. The Appellate Division did not abuse its discretion by choosing the latter option.
Order affirmed, in a memorandum. Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur.