Opinion
2012-06-20
The PEOPLE, etc., respondent, v. Johnny RIOS, appellant.
Lynn W.L. Fahey, New York, N.Y. (Winston McIntosh of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Howard B. Goodman of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Winston McIntosh of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Howard B. Goodman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered August 26, 2010, convicting him of murder in the second degree, upon a jury verdict, and sentencing him to a term of imprisonment of 25 years to life, to run consecutively to a certain undischarged sentence.
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing.
The defendant's contention that he was deprived of his due process right to a fair trial by the admission of certain uncharged crime evidence is unpreserved for appellate review ( see CPL 470.05[2]; People v. Dahlbender, 23 A.D.3d 493, 494, 805 N.Y.S.2d 597) and, in any event, without merit ( see generally People v. Till, 87 N.Y.2d 835, 836–837, 637 N.Y.S.2d 681, 661 N.E.2d 153;People v. Muniz, 248 A.D.2d 644, 644–645, 669 N.Y.S.2d 949;see also People v. James, 19 A.D.3d 616, 617, 797 N.Y.S.2d 129;cf. People v. Resek, 3 N.Y.3d 385, 390, 787 N.Y.S.2d 683, 821 N.E.2d 108;People v. Drake, 94 A.D.3d 1506, 943 N.Y.S.2d 328;People v. Sayers, 64 A.D.3d 728, 732, 883 N.Y.S.2d 142;People v. Foster, 295 A.D.2d 110, 113, 743 N.Y.S.2d 429;People v. Bell, 217 A.D.2d 585, 586, 629 N.Y.S.2d 89).
However, as the defendant contends and the People correctly concede, the defendant is entitled to be resentenced. In particular, certain remarks made by the Supreme Court during sentencing demonstrate that it incorrectly believed that it was required, as a matter of law, to direct that the defendant's sentence run consecutively to a certain undischarged sentence when in fact, under the circumstances, the Supreme Court had discretion to direct that the defendant's sentence run either concurrently with or consecutively to that undischarged sentence ( see Penal Law § 70.25[4] ). Accordingly, the matter must be remitted to the Supreme Court, Kings County, for resentencing ( see People v. Yant, 223 A.D.2d 747, 747, 637 N.Y.S.2d 468;People v. Jeffries, 166 A.D.2d 665, 666, 561 N.Y.S.2d 86).