The People, Respondent,v.Sergio Rodriguez, Appellant.BriefN.Y.March 23, 2015APL-2014-00087 To be argued by ELEANOR J. OSTROW (20 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - SERGIO RODRIGUEZ, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov HILARY HASSLER ELEANOR J. OSTROW ASSISTANT DISTRICT ATTORNEYS Of Counsel OCTOBER 1, 2014 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii PRELIMINARY STATEMENT ......................................................................................... 1 QUESTIONS PRESENTED .............................................................................................. 2 INTRODUCTION................................................................................................................ 3 THE ORIGINAL SENTENCING PROCEEDING ..................................................... 7 THE FIRST ROUND OF APPEALS ................................................................................ 9 THE RESENTENCING PROCEEDING ..................................................................... 11 POINT I THE REMEDIAL ACTION THAT THE APPELLATE DIVISION AUTHORIZED THE RESENTENCING COURT TO TAKE WAS NOT BARRED BY CPL §430.10, AS THIS COURT PREVIOUSLY DETERMINED ........................................................................................... 15 POINT II THE IMPOSITION OF CONSECUTIVE SENTENCES ON THE FIRST DEGREE ASSAULT AND FIRST DEGREE ROBBERY-BY-DISPLAY CONVICTIONS COMPLIED WITH PENAL LAW §70.25(2) .......................................... 20 POINT III DEFENDANT’S CLAIM THAT THE COURT’S REMARKS ABOUT DEFENDANT’S PRISON CONDUCT “INFECTED” THE RESENTENCING PROCEEDING WITH ERROR IS UNPRESERVED AND UTTERLY MERITLESS .................................................................. 32 CONCLUSION ................................................................................................................... 40 TABLE OF AUTHORITIES FEDERAL CASES Albernaz v. United States, 450 U.S. 333 (1981) ................................................................ 31 STATE CASES People v. Adkinson, 88 N.Y.2d 561 (1996) ....................................................................... 18 People v. Arroyo, 93 N.Y.2d 990 (1999) ........................................................................... 21 People v. Brown, 80 N.Y.2d 361 (1992) ............................................................................ 23 People v. Day, 73 N.Y.2d 208 (1989) .................................................................... 22-23, 36 People v. Farrar, 52 N.Y.2d 302 (1981) ............................................................................. 36 People v. Frederick, 14 N.Y.3d 913 (2010) ....................................................................... 25 People v. Hemmings, 2 N.Y.3d 1 (2004) ........................................................................... 35 People v. Kuey, 83 N.Y.2d 278 (1994) ......................................................................... 35-38 People v. Laureano, 87 N.Y.2d 640 (1996) ................................................................. 22, 25 People v. Lingle, 16 N.Y.3d 621 (2011) ............................................................................. 31 People v. McKnight, 16 N.Y.3d 43 (2010) ........................................................................ 27 People v. Naranjo, 89 N.Y.2d 1047 (1997) ....................................................................... 36 People v. Nieves, 2 N.Y.3d 310 (2004) .............................................................................. 34 People v Oliver, 63 N.Y.2d 973 (1984) ............................................................................. 34 People v. Outley, 80 N.Y.2d 702 (1993) ............................................................................ 36 People v. Ramirez, 89 N.Y.2d 444 (1996) ............................................................. 28-29, 31 People v. Richardson, 100 N.Y.2d 847 (2003) .................................................................. 18 People v. Romaine, 288 A.D.2d 242 (2d Dept. 2001) ..................................................... 19 People v. Rosas, 8 N.Y.3d 493 (2007) ............................................................................... 22 -ii- People v. Salcedo, 92 N.Y.2d 1019 (1998) ........................................................................ 29 People v. Tanner, 30 N.Y.2d 102 (1972) ............................................................... 26-27, 29 People v. Taveras, 12 N.Y.3d 21 (2009) ............................................................................ 22 People v. Truesdell, 70 N.Y.2d 809 (1987) ....................................................................... 23 People v. Williams, 87 N.Y.2d 1014 (1996) ...................................................................... 31 People v. Yannicelli, 40 N.Y.2d 598 (1976) ...................................................................... 18 People v. Yong Yun Lee, 92 N.Y.2d 987 (1998) .............................................................. 29 People v. Young, 94 N.Y.2d 171 (1999) ...................................................................... 18, 36 STATE STATUTES CPL §380.20 .......................................................................................................................... 18 CPL §430.10 ............................................................................................ 2, 5, 7, 10-12, 15-19 CPL §440.20 .......................................................................................................................... 19 CPL §470.20 .............................................................................................................. 10, 17, 19 General Construction Law §35 ........................................................................................... 18 Penal Law §70.25(2) .................................................. 2, 5-7, 10-12, 16-17, 19-22, 25, 30-31 Penal Law §110.00 .................................................................................................................. 4 Penal Law §120.05(2) ............................................................................................................. 7 Penal Law §120.10(1) ............................................................................................. 1, 4, 23, 24 Penal Law §125.25(1) ............................................................................................................. 4 Penal Law §160.00 ................................................................................................................ 26 Penal Law §160.10(1) ....................................................................................................... 4, 24 Penal Law §160.15(1) ....................................................................................................... 4, 30 Penal Law §160.15(4) ................................................................................................. 1, 23, 24 -iii- COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- SERGIO RODRIGUEZ, Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Robert S. Smith, Associate Judge of the Court of Appeals, defendant appeals from an order of the Appellate Division, First Department, dated December 12, 2013, which affirmed a resentence of the Supreme Court, New York County (Edward J. McLaughlin, J.), entered on May 23, 2012. By that resentence, the court imposed consecutive, determinate prison terms on two of defendant’s five convictions, specifically 25 years on his conviction for Robbery in the First Degree under Penal Law §160.15(4) and 15 years on his conviction for Assault in the First Degree under Penal Law §120.10(1), and otherwise imposed determinate prison terms on defendant’s convictions to run concurrently to one another, for an aggregate term of 40 years, to be followed by five years of post-release supervision. Defendant is serving his sentence. QUESTIONS PRESENTED 1) Where the Appellate Division, upon determining that an aggregate prison sentence contained illegal consecutive prison terms, modified the sentence to run those prison terms concurrently and remanded the case so that the trial court could refashion the individual terms to arrive at the aggregate sentence originally imposed, did CPL §430.10 bar the trial court from exercising the authority given to it by the appellate court? This Court already answered this question, “no,” on defendant’s prior appeal. 2) Did Penal Law §70.25(2) permit the imposition of consecutive prison terms for the robbery-by-display conviction and the assault conviction, where the trial record showed, and the jury clearly found, that the robbery-by-display was committed and fully accomplished through defendant's gunpoint demand for the victim’s property coupled with an accomplice’s theft of the property, and the assault was accomplished by defendant’s completely gratuitous and isolated act of firing his gun and shooting the victim three times? The Appellate Division answered this question, “yes.” 3) Where defendant’s crimes in this case, as well as his prior violent felony conviction, involved gratuitous acts of extreme cruelty, did the trial court err in determining that defendant’s progress while incarcerated during the period between -2- the original sentencing and the resentencing did not warrant a reduction in the aggregate sentence originally imposed in this case? The Appellate Division answered this question, “no.” INTRODUCTION On the night of May 15, 2007, 32-year-old Rodney Paige was walking toward his home in the Baruch Housing Project, on Manhattan’s Lower East Side, when defendant, Victor Perez, and Joseph Ramirez rode up next to Paige on bicycles. Defendant brandished a gun at Paige and demanded that Paige hand over the gold chain he was wearing around his neck. Paige immediately tried to unclasp the necklace in an obvious effort to comply with defendant’s demand. Acting gratuitously and with marked cruelty, defendant shot Paige three times, once in his leg, a second time in his torso, and a third time in his back. After the final shot, Paige fell to the ground. Perez took Paige’s chain and cell phone, and the three assailants fled the scene. Paige was taken by ambulance to Bellevue Hospital. The first bullet fired by defendant penetrated Paige’s leg and caused tissue damage in his knee. The second bullet pierced Paige’s torso, causing multiple holes in his bowel; the third bullet entered Paige’s back and lodged in the vertebrae, causing irreparable spinal cord injury. Paige underwent emergency surgery to remove a portion of his small intestine. As a result of the shooting, Paige was rendered paraplegic. He lost strength and -3- almost all sensation in his lower extremities. In a best case scenario, Paige might eventually be able to walk at home with the assistance of long leg braces or supports, but he would be wheelchair-bound when outside the home for the rest of his life. Defendant was charged by Indictment Number 5455/07 with Attempted Murder in the Second Degree (Penal Law §§110.00, 125.25[1][intentional]), Assault in the First Degree (Penal Law §120.10[1][causes serious physical injury by means of deadly weapon or dangerous instrument]), two counts of Robbery in the First Degree (Penal Law §§160.15[1][causes serious physical injury], [4][displays what appears to be a firearm]), and Robbery in the Second Degree (Penal Law §160.10[1][aided by another person actually present]). Defendant proceeded to trial on that indictment before Justice Edward J. McLaughlin and a jury. On June 18, 2008, the jury found defendant guilty as charged. At defendant’s original sentencing proceeding conducted on October 14, 2008, the court imposed the following determinate prison terms on each of the various counts: 25 years for Attempted Murder in the Second Degree; 15 years for Assault in the First Degree; 25 years for each of the two counts of Robbery in the First Degree; and 15 years for Robbery in the Second Degree. In order to arrive at an aggregate sentence of 40 years’ imprisonment, the court made the 15-year prison term on the assault conviction run consecutively to the 25-year prison term on the attempted murder conviction, and otherwise made all of the sentences run concurrently to one -4- another. The court imposed five years’ post-release supervision to follow the prison terms (A92-A103).1 On defendant’s direct appeal, the Appellate Division, First Department, determined in an order dated December 28, 2010, that the original aggregate sentence violated Penal Law §70.25(2), because the trial court had arrived at that aggregate sentence by running consecutively the individual prison terms for the attempted murder and assault counts, two crimes that had arisen from the same act (A16). The Appellate Division modified the judgment to the extent of directing that the sentences for the attempted murder and assault convictions be served concurrently and remanded the case to the trial court for resentencing to give that court the opportunity to restructure the individual sentences to arrive lawfully at the 40-year aggregate sentence originally imposed. The Appellate Division otherwise affirmed the judgment (A15-A18). This Court granted defendant leave to appeal. In a decision dated March 22, 2012, the Court affirmed the Appellate Division’s order.2 In affirming, the Court rejected defendant’s claim that the remedial action ordered by the Appellate Division was barred by CPL §430.10, which prohibits a trial court from changing a lawfully- imposed sentence once the term has commenced unless otherwise specifically 1 All page citations preceded by A are to defendant’s Appendix. Pages A104 through A109 of the Appendix are bound separately in defendant’s Confidential Appendix. 2 Three judges dissented in part from the Court’s decision. -5- authorized by law (A5-A9). The Court declined to reach as premature defendant’s additional consecutive-sentence claim: that no two individual sentences could be imposed to run consecutively to arrive at the 40-year aggregate sentence originally imposed without running afoul of Penal Law §70.25(2), the statute that governs imposition of consecutive and concurrent sentences (A9-A10). The case was remanded to the trial court, and a resentencing proceeding was conducted on May 23, 2012, before the same judge who had presided over the trial and the original sentencing (A142-A156). The trial judge imposed the same individual prison terms that defendant had previously received on his multiple convictions. Further, the trial court restructured those individual prison terms to arrive at the same aggregate prison sentence of 40 years that defendant had received previously. This time, the trial court accomplished that result by imposing the 15-year prison term on the first degree assault conviction to run consecutively to the 25-year prison term on the first degree robbery-by-display conviction, and otherwise imposing all of the sentences to run concurrently to one another (A154-A155). Defendant appealed from the resentence. In an order dated December 12, 2013, the Appellate Division affirmed the resentence. That court rejected all of defendant’s challenges to his resentence (A2-A4). Regarding defendant’s claim based upon Penal Law §70.25(2), the Appellate Division determined that the consecutive prison terms imposed for the robbery-by-display and assault convictions did not violate Penal Law §70.25(2), because the robbery-by-display conviction was based on -6- defendant's display of a firearm and the assault conviction was based on defendant's distinct act of shooting the victim (A3). The Appellate Division further determined that, “[a]lthough the resentencing court was not required to consider defendant’s alleged rehabilitative progress while incarcerated, it did, in fact, remark on such progress, but reasonably concluded that it was outweighed by the extreme heinousness of defendant’s crime” (A4). On April 9, 2014, Judge Smith granted defendant’s application for leave to appeal to this Court. On this current appeal, defendant makes the same threshold claim already rejected by this Court on defendant’s prior appeal: that CPL §430.10 prohibited any restructuring of the individual sentences by the resentencing court. Defendant further asserts that the assault and robbery-by-display counts arose from the same acts and that the imposition of consecutive sentences for those counts violated Penal Law §70.25(2). Finally, defendant argues that remarks made by the resentencing court “infected” the resentencing proceeding “with error.” THE ORIGINAL SENTENCING PROCEEDING At the original sentencing on October 14, 2008, defendant was adjudicated a predicate violent felony offender based upon his 2006 conviction for Assault in the -7- Second Degree, under Penal Law §120.05(2).3 When given the opportunity to speak on sentencing, the prosecutor noted that the victim, Rodney Paige, was present in court, and that the severity of his permanent, life-altering paraplegia was evident. The prosecutor stressed that defendant’s prior conviction for second degree assault and his current crimes demonstrated defendant’s proclivity for purely gratuitous acts of violence. In the prior second degree assault case, the prosecutor observed, defendant had cut a man with a razor from his ear to his neck for no apparent reason, inflicting a wound that required surgery and numerous staples and stitches to close. And, in the current case, defendant had inexplicably shot Paige -- pulling the trigger three times -- despite Paige’s conspicuous readiness to surrender his chain as soon as defendant had demanded it. Observing that the act of shooting Paige was utterly gratuitous and unnecessary to advance the robbery, the prosecutor recommended that defendant be sentenced consecutively for the assault and the robbery (A93-A97). Defense counsel stated that defendant felt “sorry” for Paige, but that defendant maintained he was innocent. Counsel argued that defendant’s crimes were committed through a single, continuous act and that concurrent sentences for his crimes was required (A98-A99). 3 The original sentencing minutes, which were appended as an exhibit to defendant’s resentencing memorandum, are reproduced in defendant’s Appendix at pages A92 to A103. -8- The court stated that “there [was] nothing to explain” defendant’s “three separate and distinct” pulls of the trigger, emphasizing that those acts were not necessary to the consummation of the robbery (A100). The court also stated that defendant “was not willing to learn from past experiences.” In that regard, the court observed that, prior to the current crimes, defendant had committed another violent felony offense during which he had inflicted “purposeful, serious and protracted injury,” and he had been convicted and imprisoned for that crime (A100-A101). The court then imposed the following determinate terms of imprisonment on defendant’s five convictions: 25 years on the attempted murder conviction; 15 years on the first degree assault conviction; 25 years on each of the two first degree robbery convictions; and 15 years on the second degree robbery conviction. The court made the 25-year prison term on the attempted murder conviction run consecutively to the 15-year prison term on the assault conviction, and otherwise ran all of the prison terms concurrently to one another, resulting in an aggregate prison term of 40 years. The court sentenced defendant to five years’ post-release supervision to follow the prison terms (A101-A103). THE FIRST ROUND OF APPEALS Defendant appealed from the judgment of conviction to the Appellate Division, First Department. As is pertinent here, defendant contended that the imposition of consecutive sentences on defendant’s attempted murder and assault -9- convictions violated Penal Law §70.25(2) because those crimes arose from the same acts. In their responding brief, the People conceded that the attempted murder and assault convictions could not lawfully support consecutive sentences, but that consecutive prison terms could be lawfully imposed for other pairs of defendant’s convictions, including, for example, the convictions for assault and first degree robbery by “display.” In an order dated December 28, 2010, the Appellate Division ruled that the imposition of consecutive sentences for attempted murder and assault violated Penal Law §70.25(2), but determined that defendant’s individual prison terms could be realigned to arrive at the same aggregate sentence previously imposed without violating that statute. The Appellate Division thus modified the judgment to the extent of directing that the sentences for attempted murder and assault be served concurrently, and remanded the case for resentencing, in accordance with its remedial powers under CPL §470.20, to give the trial court the opportunity to restructure the individual sentences to arrive lawfully at the same 40-year aggregate sentence imposed originally. In ordering the remand, the Appellate Division explicitly rejected defendant’s contention that CPL §430.10 prohibited such remedial action. The Appellate Division otherwise affirmed the judgment. By permission, defendant filed an appeal from the Appellate Division order to this Court, arguing that the remedial action ordered by the Appellate Division violated CPL §430.10, and that, in any event, there was no pair of convictions that would -10- support consecutive sentences under Penal Law §70.25(2). In a decision dated March 22, 2012, the Court affirmed the Appellate Division order over the partial dissent of three judges. In the decision, the Court rejected defendant’s claim that the remedial action ordered by the Appellate Division was barred by CPL §430.10. The Court declined to reach as premature defendant’s additional claim that no pair of defendant’s convictions could lawfully support consecutive sentences under Penal Law §70.25(2). THE RESENTENCING PROCEEDING Defendant’s case was remanded to the trial court for resentencing. Prior to the resentencing date, defendant submitted a Resentencing Memorandum to the trial court in which he yet again claimed that CPL §430.10 barred that court from exercising the authority granted to it by the Appellate Division to restructure the sentences to achieve the same 40-year aggregate sentence originally imposed (A38- A47). Defendant also claimed that there were no two offenses of which he was convicted that would lawfully support consecutive prison terms under Penal Law §70.25(2) (A48-A52). Finally, defendant argued that, even if consecutive sentences could be lawfully imposed, the court should decline to do so as a matter of discretion based upon defendant’s support from his family and his conduct in prison during the pendency of the appeals (A32-A37, A53). -11- The People submitted a responding memorandum, arguing that defendant’s CPL §430.10 and Penal Law §70.25(2) contentions were meritless. The People further stated that the same aggregate sentence as was previously imposed still was warranted. The People reviewed the facts of the underlying crimes and defendant’s prior violent felony, and asserted that defendant’s post-conviction prison conduct did not justify a lesser sentence (A124-A141). After receiving the parties’ submissions, but prior to the resentencing proceeding, the court wrote a decision dated May 22, 2012, in which it stated that CPL §430.10 did not bar it from restructuring the prison terms to achieve the same aggregate sentence originally imposed (A142-A143). The court further stated, “at resentencing, [it would] decide whether Penal Law [§]70.25(2) permits consecutive sentences and then impose an appropriate sentence based on all of the facts and circumstances that a court must consider when imposing a sentence, including, in this case, the defendant’s conduct since sentence was originally imposed in 2008” (A143). On May 23, 2012, defendant, his two defense attorneys, and the prosecutor appeared for defendant’s resentencing before the trial court. The prosecutor argued that the robbery and the shooting arose from separate acts, and that those distinct acts supported the imposition of consecutive sentences. The prosecutor further contended that this case warranted imposition of the same aggregate sentence as was originally imposed. The prosecutor informed the court that the victim still “can’t put one leg in front of the other” and was confined to a wheelchair (A145-A147). -12- Defendant’s attorneys argued that defendant’s convictions arose from a single act and that consecutive sentences could not be imposed for any two of his convictions (A147-A149). Moreover, counsel argued that, even if consecutive sentences were permitted, the court should impose a sentence shorter than the aggregate sentence previously imposed. Defendant’s attorneys urged that defendant’s “progress” while incarcerated had been “remarkable.” Counsel stated that defendant had “complet[ed] over forty hours of the Frontline Violence Awareness Program” and had completed “aggression replacement training” (A149-A150). Counsel added that defendant’s prison record did not include any violence and that he had an “almost perfect disciplinary record,” the one exception being “a violation from three years ago” (A150). He had “obtained extensive vocational training and enrolled in a parenting class,” and also attended “Bible study and mass” (A150). He participated in a program providing counseling to others about HIV and AIDs and “was in the Inmate Program Associate Program where he serves as a leader and a role model to other inmates” (A150). Counsel said defendant had maintained a connection to his family, members of which had written letters for him and were at the resentencing (A150-A152). Referring to the presentation the she had just made, counsel stated that she “underst[oo]d that [the court] does intend to consider this information, but for the purposes of preserving the record,” she wanted to make the following assertion: “[G]iven everything we have provided regarding his rehabilitation we maintain that -13- anything greater than 25 years would be an abuse of discretion as a matter of law” and “would violate federal and state due process and fundamental fairness and his right to be sentenced on accurate information” (A151). Before imposing sentence, the court addressed the defense argument that defendant’s prison conduct during the pendency of his appeals warranted a lesser aggregate sentence than the one originally imposed. As noted, the court had previously acknowledged its obligation to consider defendant’s post-conviction prison conduct. However, upon consideration, the court declined to reduce defendant’s aggregate sentence based on his prison record. The court noted the absence of any legislative mandate for periodic reviews of a defendant’s prison record in the context of a defendant’s bid for a sentence reduction (A152-A153). The court also expressed concern that defendant’s good behavior in prison may have reflected a calculation that it would improve his chances for a sentence reduction on appeal or at an eventual parole hearing (A152-A154). In any event, the court determined that defendant’s accomplishments in prison were simply “not sufficient to lessen the appropriateness of the [aggregate] sentence” originally imposed (A154). In reaching that determination, the court relied upon “the enormity of the crime,” which had dramatically altered the course of the victim’s life, and the deterrent effects of the original sentencing determination (A153-A154). Thus, the court expressed its intent to impose the same 40-year aggregate sentence it had deemed fitting and proper at the original sentence proceeding (A154). -14- The court imposed the following determinate prison sentences: 25 years on the attempted murder conviction; 15 years on the first degree assault conviction; 25 years on the first degree robbery count involving the infliction of serious physical injury; 25 years on the first degree robbery count involving the display of what appeared to be a firearm; 15 years on the second degree robbery count based on being aided by another actually present; and 15 years on the first degree assault count based on the infliction of serious physical injury by means of a deadly weapon or dangerous instrument (A154-A156). The court made the 15-year prison term on the assault count run consecutively to the 25-year prison term on the first degree robbery-by- display count, and otherwise made the prison terms all run concurrently to one another, for an aggregate determinate prison sentence of 40 years (A155-A156). Finally, for each of the counts, the court also imposed a five-year term of post-release supervision (A155-A156). POINT I THE REMEDIAL ACTION THAT THE APPELLATE DIVISION AUTHORIZED THE RESENTENCING COURT TO TAKE WAS NOT BARRED BY CPL §430.10, AS THIS COURT PREVIOUSLY DETERMINED (Answering Defendant’s Brief, Point I). On defendant’s prior appeal, this Court affirmed the Appellate Division’s order, remanding the case to the trial court for resentencing. The Appellate Division had directed that remedial action, because it had determined that the trial court’s -15- imposition of consecutive prison terms for attempted murder and assault was erroneous under Penal Law §70.25(2), and it wanted the trial court to have the opportunity to restructure, in accordance with Penal Law §70.25(2), the consecutive- concurrent relationships among the individual prison terms on defendant’s multiple convictions to arrive at the same aggregate sentence originally imposed. In the course of affirming the Appellate Division’s order granting that authority to the trial court, this Court considered and rejected defendant’s claim that the remedial relief ordered by the Appellate Division was barred by CPL §430.10. Nevertheless, defendant, once again, argues on appeal that CPL §430.10 barred the Appellate Division from authorizing the resentencing court to restructure the consecutive-concurrent relationships among defendant’s individual prison terms to arrive at the same aggregate sentence previously imposed. According to defendant, on the prior appeal, this Court determined that CPL §430.10 did not bar the Appellate Division, as a technical matter, from remanding the case for resentencing, but left undetermined the issue presented for the Court’s resolution on that appeal: whether CPL §430.10 precluded, as a legal matter, the very remedial action that the Appellate Division authorized the resentencing court to take on remand. In fact, this Court clearly resolved on defendant’s prior appeal that CPL §430.10 does not limit the corrective powers of the Appellate Division, and the Court’s decision sets forth several reasons for that ruling. At the start of the decision, the Court framed the issue before it as whether CPL §430.10 barred the Appellate -16- Division’s corrective action in this case, and the Court stated that the statute “does not” bar such action (A5). The Court next clarified that the corrective action ordered by the Appellate Division was evidently intended to give the trial court the opportunity “to make certain of the remaining counts run consecutively to the concurrent sentences.” The Court then explained that CPL §470.20 grants intermediate courts “broad authority” to fashion corrective action that both rectifies injustice to the appellant and protects the rights of the respondent (A6-A7).4 Addressing CPL §430.10, the Court noted that that statute “derived from” former laws “prohibiting trial courts from changing a lawfully-imposed sentence once the term had commenced,” and that the statute “does not prohibit sentences from being either changed or modified as the result of … the appellate process” 4 When quoting from §470.20, the Court underscored the language requiring the appellate courts to take corrective action that both rectifies injustice to the appellant and protects the rights of the respondent: “Upon reversing or modifying a judgment, sentence or order … an intermediate appellate court “must take or direct such corrective action as is necessary and appropriate both to rectify any injustice to the appellant resulting from the error or defect which is the subject of the reversal or modification and to protect the rights of the respondent” (A8 [emphasis in the Court’s decision]). Where an appellate court is presented with an aggregate sentence, whose overall length fits the defendant’s crimes and criminal history, but whose structure violates Penal Law §70.25(2), corrective action that lawfully realigns the defendant’s individual prison terms in accordance with Penal Law §70.25(2) and arrives at the aggregate sentence previously imposed perfectly serves the mandated objectives of CPL §470.20. By contrast, CPL §470.20’s objectives would not be met by corrective action that awarded the defendant an aggregate sentence that was much shorter than what his crimes and criminal history warranted and what Penal Law §70.25(2) allowed. Indeed, under defendant’s constricted view of the law, the sentencing court’s mistake would result in defendant’s receipt of the very same sentence as co-defendant Perez, although defendant -- as the gunman and as Paige’s near-executioner -- clearly was the more culpable participant in the crimes. Such corrective action would afford defendant an undeserved windfall and senselessly prejudice the interests of the People. -17- (A7)(emphasis in the Court’s decision). The Court also explained that CPL §430.10’s “language ‘[e]xcept as otherwise specifically authorized by law’ limits [that statute’s] reach, particularly in light of the broad authority CPL [§]470.20 grants” to intermediate appellate courts (A7-A8).5 Underscoring that last point, the Court stated that “[d]efendant misreads People v. Yannicelli, (40 N.Y.2d 598 [1976]) as holding that CPL §430.10 limits the power of appellate courts” (A8-A9). Finally, at the end of the decision, the Court made clear that the only issue raised by defendant’s 5 These observations by the Court also explain why People v. Richardson, 100 N.Y.2d 847 (2003) and People v. Adkinson, 88 N.Y.2d 561 (1996) -- two cases cited by defendant on the first appeal and again on this one -- have no application here. Thus, for good reason, this Court did not cite to those cases in its majority decision. In each of those cases, the trial court changed the defendant’s sentence on its own initiative, rather than at the direction of an appellate court. Moreover, the trial courts in those cases were not acting in response to defects of law in the original sentence. CPL §430.10, by its express language, prohibits only changes to a “lawful” sentence. Even defendant cannot deny that CPL §430.10 poses no bar to a court’s correction of an illegal sentence. But, he argues that a legal defect in one portion of an aggregate sentence does not permit a trial court to change any portions of the aggregate sentence that do not themselves contain a legal defect. The Court, which was presented with that same argument on the first appeal, was evidently not persuaded by it and understandably so. Defendant bases the argument on his view that the word “sentence” in CPL §430.10 does not mean one “global, sentence ‘package,’” but rather only an individual sentence (see Defendant’s Brief at 31). That view, however, does not comport with basic principles of statutory construction or the reality of sentencing practice. See General Construction Law §35 (“Words in the singular number include the plural, and in the plural number include the singular.”); People v. Young, 94 N.Y.2d 171, 181 (1999)(“While trial courts in New York are required to impose discrete sentences for each individual count [see, CPL 380.20], we cannot ignore the reality that, in cases involving multiple counts, trial courts may view the individual sentences as part of an integrated whole.”). -18- appeal that it was leaving undecided was whether Penal Law §70.25(2) allowed any of defendant’s sentences to run consecutively (A9-A10).6 In sum, this Court has already determined for sound reasons that CPL §430.10 did not limit the corrective powers of the Appellate Division, and that the corrective action authorized by that court, and implemented by the trial court, was lawful. 6 Nor is there any merit to defendant’s contention that “[a] finding” that an appellate court’s corrective powers under CPL §470.20 are not constrained by CPL §430.10 “present[s] serious federal and state due-process and equal-protection concerns – considering that defendants who have achieved sentencing relief in the trial courts, by way of CPL §440.20 motions, possess protection from CPL §430.10 violations” (Defendant’s Brief at 25-26). First, defendant has cited no law supporting his assertion that federal and state due process and equal protections rights would be implicated if the corrective powers of an appellate court under CPL §470.20 were different from those of a trial court under CPL §440.20. Indeed, defendant has offered no rationale for his view that a Legislature’s determination to afford different corrective powers to different reviewing courts in different procedural contexts violates the due process and equal protection rights of a defendant who had both procedures available to him. Moreover, this Court has never held that CPL §430.10 prohibits a trial court on a CPL §440.20 motion from restructuring the consecutive- concurrent alignment of a defendant’s sentences to arrive at the same aggregate sentence originally imposed where the original structure was legally defective. In People v. Romaine, 288 A.D.2d 242 (2d Dept. 2001), cited by defendant (Defendant’s Brief at 26), the Second Department held that CPL §430.10 prohibited such action on a CPL §440.20 motion. But, Romaine was decided before this Court’s decision in the instant case, and it depends upon an interpretation of CPL §430.10 that ignores basic principles of statutory construction and the reality of sentencing practice, as previously discussed (see discussion at page 18 fn.5, supra). -19- POINT II THE IMPOSITION OF CONSECUTIVE SENTENCES ON THE FIRST DEGREE ASSAULT AND FIRST DEGREE ROBBERY-BY-DISPLAY CONVICTIONS COMPLIED WITH PENAL LAW §70.25(2) (Answering Defendant’s Brief, Point II). Defendant, with the assistance of two accomplices, robbed Rodney Paige by displaying and threatening Paige with a gun, demanding Paige’s necklace, and taking the necklace and Paige’s cell phone. During the robbery, Paige was completely compliant. Immediately following defendant’s gunpoint demand for Paige’s necklace, Paige reached for the clasp of his necklace to unfasten it. Paige did not resist the robbers; he posed no threat to them; and he did not try to flee. Nevertheless, as Paige was striving to unclasp the necklace, defendant -- in an act of sheer, gratuitous brutality -- shot Paige three times: once in the leg, a second time in the torso, and a third time in the back. As a result of the shooting, Paige sustained irreparable spinal cord injury and was rendered paraplegic. Defendant’s three acts of shooting were not an aspect of the force needed to accomplish the robbery. Those gunshots were utterly gratuitous acts, distinct from the conduct through which the robbery was achieved. The jury evidently saw it the same way. Co-defendant Victor Perez, who was charged with the same crimes as defendant and jointly tried with him, was convicted by the jury of the three robbery counts and acquitted of the two crimes associated exclusively with defendant’s discharge of the gun: attempted murder and assault. -20- At the resentencing in this case, the court imposed the same individual prison terms on defendant’s convictions that it had imposed at the original sentencing: on the attempted murder conviction, a determinate prison term of 25 years; on the first degree assault conviction, a determinate prison term of 15 years; on the first degree robbery count involving the infliction of serious physical injury, a determinate prison term of 25 years; on the first degree robbery count involving the display of what appears to be a gun, a determinate prison term of 25 years; on the second degree robbery count, a determinate prison term of 15 years. The resentencing court imposed the prison sentences for the robbery-by-display conviction and the assault conviction to run consecutively, and otherwise made the sentences all run concurrently, for an aggregate prison term of 40 years (A154-A156).7 The resentencing court’s imposition of consecutive sentences for the robbery- by-display and assault convictions accorded with the requirements of Penal Law §70.25(2). The robbery-by-display offense and the assault offense contained no overlapping elements, and the trial evidence established that the two crimes arose from separate acts. Under Penal Law §70.25(2), consecutive sentences may not be imposed for two offenses where a single act constitutes the two crimes, or where a single act constitutes one of the crimes and is a material element of the other. See People v. 7 The court also imposed a five-year term of post-release supervision (A154-A155). -21- Arroyo, 93 N.Y.2d 990, 991 (1999); People v. Laureano, 87 N.Y.2d 640, 643 (1996); People v. Day, 73 N.Y.2d 208, 210-211 (1989). Because both prongs of Penal Law §70.25(2) refer to the “act or omission,” or the “actus reus” that constitutes the offense, the court must determine whether -- by definition -- the actus reus element is the same for both offenses or the actus reus for one offense is a material element of the second offense. People v. Laureano, 87 N.Y.2d at 643, citing People v. Day, 73 N.Y.2d at 211; accord, People v. Rosas, 8 N.Y.3d, 493, 496-497 (2007). To make that determination, the court must first examine the statutory definitions of the crimes for which defendant has been convicted to determine whether the actus reus elements of one offense subsumes the actus reus elements of the other crime. People v. Laureano, 87 N.Y.2d at 643. If the actus reus elements of the crimes do not completely overlap under the statutory definitions of the crimes, then concurrent sentences are not required. People v. Taveras, 12 N.Y.3d 21 (2009)(concluding that “the statutory elements of the felony sex offense are categorically discrete from the falsifying business records offense, and that “the absence of legislatively declared interdependence in their definitions is evident, compelling an interpretation that consecutive sentences are not forbidden here”). Even if the statutory elements do completely overlap, the People still may establish the legality of consecutive sentencing by showing that the “acts” committed by defendant for each crime were “separate and distinct.” People v. Laureano, 87 N.Y.2d at 643. Further, consecutive sentences are permissible for crimes that were -22- committed through separate and distinct acts, even if the crimes were part of a single transaction motivated by one overriding intent. See People v. Brown, 80 N.Y.2d 361, 364 (1992); People v. Truesdell, 70 N.Y.2d 809, 811 (1987); People v. Day, 73 N.Y.2d at 212. Here, consecutive sentences are permissible for the first degree assault conviction and the first degree robbery-by-display conviction because a comparison of the statutory definitions of the two offenses demonstrates that the actus reus elements do not overlap such that one crime is subsumed by the other. The actus reus of Robbery in the First Degree under Penal Law §160.15(4) is committed when a person “forcibly steals property” and, “in the course of the commission of the crime or immediate flight therefrom,” he “displays what appears to be a ... firearm.” The actus reus of Assault in the First Degree under Penal Law §120.10(1) is committed when a person causes serious physical injury to another person by “means of a deadly weapon or a dangerous instrument.” Thus, the actus reus of first degree assault -- causing serious physical injury by means of a deadly weapon or dangerous instrument -- is not an element of first degree robbery under Penal Law §160.15(4). Conversely, the actus reus of first degree robbery under Penal Law §160.15(4) -- forcibly stealing property while displaying what appears to be a firearm -- is not an element of first degree assault, Penal Law §120.10(1). Accordingly, defendant’s crimes passed the elements test for consecutive sentences. -23- Moreover, the facts adduced at trial demonstrated that the first degree assault conviction (under Penal Law §120.10[1]) arose from acts that were separate and distinct from the acts giving rise to the robbery-by-display conviction (under Penal Law §160.15[4]). The trial evidence showed that the robbery was accomplished through defendant’s display of a gun to Paige, defendant’s demand that Paige surrender his chain, and Perez’s taking of the chain and cell phone from Paige. Defendant’s three discharges of the gun -- the acts constituting the first degree assault -- were superfluous to the robbery, since Paige offered no resistance to defendant’s gunpoint demand for the chain and was trying to unclasp the chain when defendant shot him. If anything, the shooting of Paige delayed and hampered the completion of the robbery, since it interfered with Paige’s effort to comply with the robbery demand. Thus, the two sets of acts, although committed during the course of a single criminal episode, were factually separate and distinct from each other.8 8 Similarly, the attempted murder count and the second degree robbery count were comprised of actus reus elements that were distinct from one another. The second degree robbery offense (like the robbery-by-display) was accomplished by defendant’s gunpoint demand for Paige’s necklace and Perez’s taking of Paige’s property, see Penal Law §160.10(1)(forcibly stealing property while being “aided by another person actually present”). And, the attempted murder (like the assault) was accomplished by defendant’s three trigger- pulls of his firearm. Thus, the resentencing court could have lawfully arrived at a 40-year aggregate prison sentence by imposing the 25-year prison term on the attempted murder conviction to run consecutively to the 15-year prison term on the second degree robbery conviction. Clearly, the resentencing court could not lawfully have imposed the 25-year prison term on the first degree robbery count based on the infliction of serious physical injury as an aggravating element to run consecutively to the 15-year prison term on the first degree assault count: the infliction of serious physical injury was the actus reus of the assault -24- (Continued…) The jury notably viewed the facts of the crimes the same way, as its verdict plainly demonstrates. The jury resolved to convict both defendant and co-defendant Perez of the robbery counts. But it also resolved to convict only defendant of the attempted murder and assault counts while acquitting Perez of those two offenses. The different jury verdicts on the attempted murder and assault counts for defendant and Perez reflects the jury’s determination that the shooting was not the force for the robbery, but rather a gratuitous act of violence against Paige that was separable from the robbery and committed by defendant alone. Although a jury’s verdict may not always support a fair inference of how it resolved a particular factual issue, this one certainly does. Thus, the imposition of consecutive sentences for the assault and robbery-by-display convictions comported with the trial evidence and the factfinder’s view of the facts. Cf. People v. Frederick, 14 N.Y.3d 913 (2010)(upholding consecutive sentences for two crimes committed during “defendant's extended criminal rampage” where “the judge, as factfinder, would have known when he sentenced defendant what facts he had found.”). The resentencing court’s determination, affirmed by the Appellate Division, that the imposition of consecutive sentences for the robbery-by-display count and the first degree assault count was lawful under Penal Law §70.25(2) is further supported charge and a material element of that robbery count. See People v. Laureano, 87 N.Y.2d at 645. But, the resentencing court properly imposed those two sentences concurrently. -25- ______________________ (…Continued) by this Court’s precedents. The Court has upheld the imposition of consecutive sentences for first degree robbery and manslaughter convictions, where the defendant and an accomplice committed a gunpoint theft and shot the compliant victim in the course of a single criminal transaction. In People v. Tanner, 30 N.Y.2d 102, 105 (1972), the defendant and a companion “held up a taxi driver and robbed him” and then, “while the taxi driver was sitting in the cab offering no resistance, [the] defendant opened the door of the cab, shot and killed the driver.” Id. In rejecting Tanner’s challenge to the consecutive alignment of his sentences, the Court observed that the robbery and homicide “were not a ‘single act,’” but rather “successive separate acts under the record here, where the shooting of the victim appears as an unnecessary afterthought.” 30 N.Y.2d at 108. To be sure, in this case, unlike in Tanner, defendant’s discharge of the gun interrupted, rather than succeeded, the acts constituting the robbery. Still, the shooting acts and the robbery acts, here, were no less separate and distinct from each other than the two sets of acts in Tanner. Timing aside, the shooting of Paige was as much an “afterthought” to the robbery in this case as the fatal shooting of the cab driver was to the robbery in Tanner. The shooting of the cab driver, if performed for the purpose of overcoming resistance to the robbers’ retention of the property, would have been part of the robbery. See Penal Law §160.00 (robbery is committed when a person commits larceny and uses force for the purpose of compelling the victim to deliver up the property or of overcoming the victim’s resistance to the retention of -26- the property immediately after the taking). But, in Tanner, this Court took note that the cab driver offered no resistance after his property was taken, 30 N.Y.2d at 105, and determined that the shooting was an afterthought to, and separable from, the robbery for consecutive sentencing purposes. The same conclusion is warranted here: Paige was already in the process of delivering up the property, and showed no resistance whatsoever to defendant’s gun-point robbery demand, when defendant shot him three times. Thus, the resentencing court sensibly found that the shooting was discrete from the robbery-by-display for consecutive sentencing purpose: the shooting, even if not, strictly speaking, sequential to the robbery-by display, certainly was not a part of the sequence of events comprising the robbery offense. This Court has previously upheld the imposition of consecutive sentences for crimes arising from separate acts, although the crimes did not necessarily occur sequentially. In People v. McKnight, 16 N.Y.3d 43 (2010), this Court upheld consecutive sentences for attempted murder and murder convictions based on nine gunshots fired by the defendant and a cohort, all of which were fired with the intent to kill one man, seven of which wounded that targeted man, and two of which killed another man. The Court concluded that, for consecutive sentencing purposes, the two shots that hit the unintended victim were separate from the seven shots that hit the targeted man. The Court reached that conclusion although there is no indication in the decision that the two shots constituting the murder neatly preceded or followed the seven shots that constituted the attempted murder. It was sufficient to support -27- consecutive sentences that the murder was accomplished through two trigger-pulls that were separate from the other seven trigger-pulls and that were unnecessary to the accomplishment of the attempted murder. In People v. Ramirez, 89 N.Y.2d 444 (1996), the Court also upheld consecutive sentences for crimes that were not neatly sequential. In that case, defendant and his accomplices, all armed, confronted two security guards who were themselves armed and transporting money for the company that employed them. Defendant and his accomplices brandished their guns at the guards and ordered them to lie face down on the ground. When one guard started to move, the robbers shot him in the back. The wounded guard dropped his gun and then managed to take refuge in a nearby building. The robbers took the wounded guard’s gun, the other guard’s gun, and the money from the truck. On appeal, this Court upheld the sentencing court’s determination to run the three robbery counts relating to the taking of the wounded guard’s gun consecutively to the robbery counts relating to the forcible taking of the other two victims’ property (the non-wounded guard’s gun and the company’s payroll bags). The Court upheld those consecutive sentences even though its recitation of the facts made clear that the acts constituting the forcible taking of the wounded guard’s gun occurred in the midst of the acts constituting the forcible taking of the other victims’ property. In explaining why the counts relating to the wounded guard could run consecutively to the other robbery counts, the Court observed that “the violence and repeated -28- shooting of [the wounded guard] was a separate and distinct act which was not a material element of the forcible taking of [the other guard’s] gun and the payroll bags.” As the Court further stated, the “entire tenor of the robbery” of the uninjured guard “was distinct from the life-threatening assault” of the wounded guard. As a result, “the fact that the crimes were temporally close in a single criminal episode is not dispositive.” People v. Ramirez, 89 N.Y.2d at 454-455 (citation omitted). 9 Here, as in Ramirez, defendant’s violent and repeated shooting of Paige was separate and distinct, and of an entirely different “tenor,” from the acts by which 9 Defendant makes much of the fact that, in Ramirez, the Court noted that the three counts of robbery relating to the forcible taking of the wounded guard’s gun were properly made to run concurrently to one another (Defendant’s Brief at 47). See People v. Ramirez, 89 N.Y.2d at 454, n. 6. But, the Court explained that defendant “was armed, displayed his weapon and caused [the wounded guard’s] injuries” by means of a single act, and thus the three robbery counts were concurrent ones. Id. Here, defendant committed the robbery- by-display crime by displaying his gun and taking Paige’s property, acts that were separable from defendant’s act of shooting Paige. And, as Tanner teaches, the forcible taking of property at gunpoint from a victim, and the shooting of that victim, both during a single criminal transaction, can support consecutive sentences where those acts were distinct from one another and accomplished separate crimes. See People v. Yong Yun Lee, 92 N.Y.2d 987 (1998)(defendant, armed with a gun and accompanied by accomplices, burglarized an office and robbed the two occupants in a single, continuous transaction; held that imposition of three consecutive sentences for the burglary and two robberies was lawful, even though “the use of a firearm was an element of each of the” three crimes, since each crime was committed through separate acts); People v. Salcedo, 92 N.Y.2d 1019 (1998)(where defendant was armed while he chased his ex-girlfriend with intent to force her to go with him, and then fatally shot her with intent to kill when she resisted, imposition of consecutive sentences for murder and second-degree-weapon-possession convictions was lawful despite “fact that defendant’s possession of the weapon was continuous” throughout transaction; “we cannot say as a matter of law that the possession and actual use of the gun were so integrated that they constituted a single act for consecutive sentencing purposes”). And, it bears repetition that, in this case, the resentencing court ran concurrently the sentences for the three robbery counts. -29- defendant and his cohorts effectuated the robbery-by-display of Paige. The jury, as factfinder, saw it the same way. Therefore, the Appellate Division correctly determined that the trial court’s imposition of consecutive prison terms for the robbery-by-display conviction and the first-degree-assault conviction was lawful under Penal Law §70.25(2). Nor is a different conclusion warranted because the jury convicted both defendant and Perez of the first degree robbery count based on the aggravating factor that the victim sustained serious physical injury “in the course of the commission” of the robbery. See Penal Law §160.15(1) (see Defendant’s Brief at 31-33). The jury instruction in this case (A85-A86), which was consonant with the Penal Law definition of the crime, Penal Law §160.15(1), required the jury to find that serious physical injury was inflicted “in the course of the commission of the [robbery]” to convict defendant and Perez of that robbery count. But neither the jury instruction nor the Penal Law definition of the crime required the jury to find that the injurious act was committed in furtherance of the robbery or inflicted with the intent of any of the defendants to advance the robbery. And, as discussed, the jury’s resolve to convict Perez of the three robbery counts, but acquit him of assault and attempted murder reflected the jury’s finding that the injurious acts -- while temporally in the course of the robbery -- were purely gratuitous, solely attributable to defendant, and decidedly not in furtherance of the robbery. -30- Finally, defendant asserts that imposition of consecutive sentences for the robbery-by-display count and the assault count violated the federal and state proscriptions against double jeopardy (Defendant’s Brief at 41). However, when imposition of consecutive sentences is allowed under Penal Law §70.25(2), a defendant’s double jeopardy rights are not violated. People v. Ramirez, 89 N.Y.2d at 451 n.5)(“[T]he constitutional prohibition against double jeopardy ‘is embodied in, if not … extended by’ Penal Law §70.25[2]."). See Albernaz v. United States, 450 U.S. 333 (1981)(a defendant is not placed in jeopardy twice by being sentenced consecutively for two crimes that were intended by the Legislature to support multiple punishments). Nor does it matter that the imposition of those consecutive sentences occurred at a resentencing, rather than at an original sentencing. Since defendant is still incarcerated and the aggregate sentence will be the same as originally imposed, defendant’s double jeopardy and due process rights are not implicated. See generally People v. Lingle, 16 N.Y.3d 621 (2011)(resentencing defendants to post-release supervision before their original sentences of imprisonment were completed to correct sentencing judge's failure to pronounce post-release supervision at sentencing did not violate federal or state double jeopardy proscriptions or due process rights); People v. Williams, 87 N.Y.2d 1014 (1996)(defendant’s claim of double jeopardy “would be colorable only if the defendant's sentence had been increased beyond his legitimate expectations of what the final sentence should be”). -31- In sum, the resentencing court acted lawfully when it restructured the individual sentences on defendant’s multiple convictions to arrive at the same aggregate sentence that was originally imposed, this time by running the robbery-by- display and assault sentences consecutively and otherwise running all of the sentences concurrently. As the trial evidence showed and the jury clearly found, defendant’s act of shooting the victim was unnecessary to, and a cruel distraction from, the robbery. Accordingly, the Appellate Division properly affirmed the resentence. POINT III DEFENDANT’S CLAIM THAT THE COURT’S REMARKS ABOUT DEFENDANT’S PRISON CONDUCT “INFECTED” THE RESENTENCING PROCEEDING WITH ERROR IS UNPRESERVED AND UTTERLY MERITLESS (Answering Defendant’s Brief, Point III). At the resentencing, defendant argued that, in determining defendant’s aggregate prison term, the court should consider defendant’s behavior in prison since the time of the original judgment. The resentencing court accepted a written submission from defendant on the subject, acknowledged in its pre-resentencing decision that defendant’s prison record was a factor relevant to its determination, and entertained oral argument from defense counsel on the subject at the resentencing proceeding. Having heard defendant’s arguments, the court declined to resentence defendant to an aggregate prison term less than the one originally imposed based on -32- his prison conduct. In making that determination, the court considered that defendant’s various appeals, which focused on the length of his sentence, as well as eventual parole review, gave defendant a motive to behave well in prison in order to influence the outcome of those proceedings. But, the principal reason for the court’s decision to adhere to the same aggregate sentence was the enormity of defendant’s crimes and their enduring, devastating effects on the life of his victim, Rodney Paige. On appeal, defendant complains that the resentencing court made remarks conveying “cynical disdain” for the information about defendant’s prison record and “betray[ing]” a view that the information was “at best, irrelevant.” Defendant argues that the court thereby violated defendant’s federal and state constitutional rights and abused its own discretion as a matter of law (Defendant’s Brief at 42-43). Defendant’s claim is an empty one. At the outset, defendant never complained to the resentencing court that it had wrongly dismissed as “irrelevant” and “with cynical disdain” the information about defendant’s prison conduct, much less argued that such treatment had violated defendant’s constitutional rights. The record establishes quite the contrary. At the resentencing proceeding, defense counsel stated that she “underst[oo]d that [the court] does intend to consider” the information regarding defendant’s prison conduct -33- (A151), and counsel did not thereafter express any view to the contrary.10 Defendant’s current claim, therefore, is unpreserved for review as a question of law and beyond the review powers of this Court. See People v. Nieves, 2 N.Y.3d 310, 315-16 (2004)(unlike claims that a sentencing court exceeded its powers, "challenges to the [sentencing] court's procedures, evidentiary disputes and claims that rely on documents or facts not otherwise developed in the record must be preserved by timely objection in the sentencing court"); People v Oliver, 63 N.Y.2d 973 (1984) (holding that defendant had failed to preserve a challenge to the manner in which he was determined to be a persistent felony offender, and distinguishing such a challenge from claims that a sentencing court had “exceeded its sentencing powers,” which do not require preservation). In any event, as the record shows, the trial court gave defendant a fair hearing on the subject of his prison conduct since the original sentencing, and the court reasonably concluded that such conduct did not warrant a lesser aggregate sentence than the one the court had originally imposed. A court’s resentencing determination properly focuses on the defendant’s role in the crime of conviction and his conduct prior to the crime. And, although a 10 To be sure, immediately after his attorney made the statement just quoted, she added that, “given everything we have provided” regarding defendant’s prison conduct, a sentence “greater than 25 years [imprisonment] would be an abuse of discretion as a matter of law” and would violate various constitutional rights held by defendant (A151). However, that statement, aside from being incorrect, did not remotely convey defendant’s present claim that the court never even considered the information about defendant’s prison record and summarily disregarded it as legally irrelevant. -34- resentencing court has the discretion to consider the defendant’s behavior since the original sentencing, a court does not abuse its discretion or violate due process by declining to reduce the original sentence based on that factor. Here, the Appellate Division correctly concluded that the resentencing court committed no error by declining to grant defendant a lesser aggregate sentence than the one originally imposed based on defendant’s “alleged rehabilitative progress while incarcerated” (A4). This Court, in People v. Kuey, 83 N.Y.2d 278 (1994), considered whether a court was required to obtain an updated presentence report before resentencing a defendant following a reversal on appeal. The Court held that there was no such requirement, and that, prior to a resentencing, the decision whether to obtain an updated presentence report was a matter for the resentencing court’s discretion. In reaching that decision, the Court stated, “[w]hen a defendant comes before the court for resentencing, the proper focus of the inquiry is on defendant’s record prior to the commission of the crime.” Id. at 282. The Court also indicated that the decision not to obtain an updated presentence report was especially reasonable where the defendant had been continually incarcerated since his original sentencing and the court gave the defendant an opportunity to present evidence regarding his behavior in prison. Id. at 283-283. More generally, of course, New York trial courts are given “broad discretion” when exercising their sentencing function. See People v. Hemmings, 2 N.Y.3d 1 -35- (2004). That discretion is appropriately exercised where, in fashioning a sentence, a court considers a defendant's background and criminal history, People v. Young, 94 N.Y.2d 171, 181-82 (1999), and is guided by the “the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence.” See People v. Farrar, 52 N.Y.2d 302, 305 (1981). To be sure, “a court's discretion in sentencing is not without limits.” And, a defendant must be afforded due process. Thus, “an offender may not be sentenced on the basis of materially untrue assumptions or misinformation.” People v. Naranjo, 89 N.Y.2d 1047, 1049 (1997)(internal quotation marks omitted). Rather, “the sentencing court must assure itself that the information upon which it bases the sentence is reliable and accurate.” People v. Outley, 80 N.Y.2d 702, 712 (1993). See People v. Naranjo, 89 N.Y.2d at 1049 (sentencing court erred by considering a prosecutor's assertion that the defendant was involved in a shooting incident where the assertion was “based on pure speculation”). But, provided they operate within those limits, judges “are wisely allocated wide latitude [in making sentencing determinations] as they are recognized to be in a superior position to dispense proportionate and fair punishment.” People v. Day, 73 N.Y.2d 208, 212 (1989); see People v. Naranjo, 89 N.Y.2d at 1049. Judged by these principles, the resentencing court properly exercised its sentencing authority. First, Kuey puts to rest defendant’s complaint that the resentencing court committed some kind of error by declining to grant defendant a lesser sentence than originally imposed based on defendant’s conduct in prison since -36- the 2008 sentencing proceeding. Kuey states that a resentencing determination -- beyond being based on the crime itself -- should focus on the defendant’s conduct prior to the crime, and indicates that a court, at most, must allow a defendant to make a presentation on the subject of his prison record since the time of his initial sentencing. Here, the court gave defendant ample opportunity to present, both orally and in writing, information regarding defendant’s prison conduct.11 Moreover, notwithstanding defendant’s contrary contention, the court did not summarily dismiss the information about defendant’s behavior in prison as necessarily irrelevant (Defendant’s Brief at 43). Rather, the resentencing court gave attention to the information and fairly determined -- for reasons the court explained on the record -- that the information should not affect the resentencing determination in this case. Thus, the court stated in its May 22, 2012, preliminary decision on resentencing that it had reviewed defendant’s written resentencing memorandum, and the court said that it would consider defendant’s prison record amassed since the original sentencing (A142-A143). At the resentencing proceeding itself, the court stated again that it had reviewed the resentencing memorandum (A145). Also at the proceeding, as previously noted, defense counsel asserted outright that she “underst[oo]d that [the court] does intend to consider” the information regarding defendant’s conduct in 11 Defendant submitted to the court a written resentencing memorandum with exhibits (A52-A122), and the court gave defendant time at the resentencing proceeding to address defendant’s conduct in prison (A149-A151). -37- prison (A151), and counsel did not thereafter complain that the court had not considered it. Of particular note, at the resentencing, the court expressly acknowledged defendant’s progress in prison, referring to it as “progress that everyone concedes Mr. Rodriguez has made” (A153). Clearly then, the court was attentive to defendant’s presentation about his conduct in prison. Defendant’s real complaint seems to be that the court was not moved to reduce defendant’s sentence because of his prison record. But, the court reasonably explained why defendant’s prison progress did not persuade it to impose a lesser aggregate prison sentence than the prison term it had originally imposed. The court observed that the Legislature had not provided for periodic judicial-review of previously imposed sentences, as the Legislature presumably would have done if it had meant for a defendant’s progress in prison always to be factored into the court’s sentencing discretion (see A152-A153). Of course, that observation by the resentencing court fully accorded with this Court’s holding in Kuey: that a court had no obligation to order a new pre-sentence report before resentencing a defendant. The resentencing court also stated quite sensibly that defendant’s good behavior in prison was not necessarily indicative of his behavior in the long-run, given that the good behavior coincided with defendant’s efforts to obtain sentencing relief from the court (A153). Although defendant denounces the court’s observation as “cynical” and “demeaning” of defendant (Defendant’s Brief at 43, 45), the court’s concern that defendant might have been motivated to behave in prison to impress the resentencing -38- court -- not to mention the appellate courts -- was an eminently reasonable one, especially in this case. After all, defendant served a one year jail sentence following his prior conviction for second degree assault (A105, A106, A109), and that period of incarceration certainly did not have any rehabilitative effect on him once he was released. If anything, defendant’s penchant for gratuitous violence has strengthened with time and was fully apparent from his methodical attempt to kill and his systematic infliction of serious physical injury on Rodney Paige for no reason at all. Finally, the resentencing court’s determination that defendant’s progress in prison was not a persuasive factor on which to reduce his overall aggregate sentence was sound for another, even more basic, reason. As the resentencing court indicated, defendant’s recent behavior in prison paled in comparison to the “enormity” of defendant’s crime (A153). Put simply, defendant’s prison record, while mostly positive, did not begin to mitigate the depravity of his present and prior crimes. The Appellate Division aptly put it this way: the resentencing court reasonably concluded that defendant’s progress in prison “was outweighed by the extreme heinousness of defendant’s crime” (A4). As already discussed in this brief, defendant’s crimes against Rodney Paige were marked by extreme cruelty. The robbery offenses themselves were serious crimes. But, the shooting was an especially brutal and despicable act of violence that left the victim paralyzed from the waist down. Moreover, defendant’s exceedingly violent behavior during the instant crimes was hardly an aberration. In his prior case resulting in a conviction for second degree assault, defendant cut the -39- victim with a razor blade “from his ear to his neck,” causing a wound that required “surgery and numerous staples and stitches” to close (A93-A97). Whatever progress defendant had made in prison prior to the resentencing did nothing to diminish the gravity of his crimes and their life-altering effects on the people he victimized. In short, the resentencing court did not abuse its discretion in deciding that defendant’s prison behavior since the original sentencing did not warrant a lesser aggregate sentence than the one originally imposed. CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: ELEANOR J. OSTROW Assistant District Attorney HILARY HASSLER ELEANOR J. OSTROW Assistant District Attorneys Of Counsel October 1, 2014 -40-