The People, Respondent,v.Sergio Rodriguez, Appellant.BriefN.Y.March 23, 2015To be argued by APL-2014-00087 SUSAN H. SALOMON (20 Minutes) Court of §ppeals ~tatt of Jlttu ~ork THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - SERGIO RODRIGUEZ, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT SUSAN H. SALOMON Of Counsel June 2, 2014 Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 7 4 Trinity Place New York, NY 10006 Phone: (212) 577-2523, Ext. 518 Fax: (212) 577-2535 ssalomon@cfal.org TABLE OF CONTENTS TABLE OF AUTHORITIES ........................... iv PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . 1 JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . 2 QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 STATUTES INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 PROCEDURAL BACKGROUND AND SUMMARY OF ARGUMENT .......................................... 5 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 The trial and original sentencing . . . . . . . . . . . . . . . . . . . . . 7 The original appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 The resentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Defense submission . . . . . . . . . . . . . . . . . . . . . . . . . 10 Prosecution submission . . . . . . . . . . . . . . . . . . . . . . 16 Court's C.P.L. § 430.10 decision ................ 16 Resentencing hearing and decision . . . . . . . . . . . . . . . . 17 The resentencing appeal to the Appellate Division . . . . . . . . . . 19 1 ARGUMENT ..................................... 21 POINT I NOTWITHSTANDING A SENTENCING REMAND ORDER FROM THE APPELLATE DIVISION, WHICH THIS COURT AFFIRMED, C.P.L. § 430.10 BARRED THE RESENTENCING COURT FROM CHANGING FROM CONCURRENT TO CONSECUTIVE, THUS TO APPELLANT'S DETRIMENT, TWO OF HIS THEN-EXTANT AND LAWFUL SENTENCES, WHICH HE HAD BEGUN TO SERVE ............................... 21 A. This Court did not decide the question whether the Appellate Division's statutory remand-authority itself authorizes a trial court's violation of C.P.L. § 430.10 upon such a remand - and the answer is that it does not. . .............................. 23 B. C. P. L. § 430 .10 otherwise for bad any adverse alteration of appellant's then-current and lawful sentences. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 POINT II THE COURT'S IMPOSITION OF CONSECUTIVE SENTENCES VIOLATED P.L. § 70.25(2) AND FEDERAL AND STATE DOUBLE-JEOPARDY AND DUE-PROCESS. . ......................... 35 POINT III THE COURT'S CYNICAL REMARKS CONCERNING APPELLANT'S UNCONTESTED REHABILITATIVE ACHIEVEMENTS INFECTED THE RESENTENCING PROCEEDING, AND THE 40-YEAR AGGREGATE SENTENCE IMPOSED, WITH ERROR. . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 11 CONCLUSION .................................... 47 111 TABLE OF AUTHORITIES Federal Cases Wilson v. McGinnis, 413 F.3d 196 (2d Cir. 2005) ..................................... 32 State Cases Bernstein Family Ltd. v. Sovereign Partners, 66 A.D.3d 1 (1st Dept. 2009) .................................................................................. 25 Brusco v. Braun, 84 N.Y.2d 674 (1994) ..................................................... 25 Courtesy Sandwich Shop v. Port of New York Authority, 12 N.Y.2d 379 (1963) ....................................................................... 26 People v. Adkinson, 88 N.Y.2d 561 (1996) .......................................... 27, 28 People v. Allende, 78 A.D.3d 553 (1st Dept. 2010) .................................... 28 People v. Battles, 16 N.Y.3d 54 (2010) ................................................ 39, 40 People v. Brown, 26 Misc. 3d 1204(A)(Sup. Ct., N.Y. Co., 2010), affd 84 A.D.3d 586 (1st Dept. 2011) ................................................ 45 People v. Carpenter, 19 A.D.3d 730 (3d Dept. 2005) ................................. 29 People v. Chambers, 123 A.D.2d 270 (1st Dept. 1986) ............................... 44 People v. Chen, 176 A.D.2d 628 (1st Dept. 1991) ....................................... 44 People v. Cronin, 60 N.Y.2d 430 (1983) .................................................... 46 People v. DeValle, 94 N.Y.2d 870 (2000) ............................................ 29, 30 People v. Farrar, 52 N.Y.2d 302 (1981) ...................................................... 30 People v. Frazier, 16 N.Y.3d 36 (2010) ................................................ 37, 38 People v. Fuller, 57 N.Y.2d 152 (1982) ........................................................ 2 IV People v. Hiemel, 49 A.D.2d 769 (2d Dept. 1975) ..................................... 44 People v. Junco, 43 A.D.2d 266(1st Dept.), aff d 35 N.Y.2d 419 (1974) .. 25 People v. Kadry, 63 A.D.3d 856 (2d Dept. 2009) ....................................... 26 People v. Kuey, 83 N.Y.2d 278 (1994) .......................................... 16, 20, 43 People v. LaSalle, 95 N.Y.2d 827 (2000) ...................................... 34, 41, 46 People v. Laureano, 87 N.Y.2d 640 (1996) ................................... 30, 36, 41 People v. Naranjo, 89 N.Y.2d 1047 (1997) ...................................... 3, 45, 46 People v. Parks, 95 N.Y.2d 811 (2000) ....................................................... 40 People v. Ramirez, 89 N.Y.2d 444 (1996) ............................................ 37, 41 People v. Richardson, 100 N.Y.2d 847 (2003) .......................... 2, 27, 29, 30 People v. Rodriguez, 112 A.D.3d 488 (1st Dept. 2013) ...................... passim People v. Rodriguez, 18 N.Y.3d 667 (2012) .............................. 5, 10, 21, 23 People v. Rodriguez, 79 A.D.3d 644 (1st Dept. 2010) ........................ passim People v. Romain, 288 A.D.2d 242 (2d Dept. 2001) ............................ 26, 29 People v. Rosas, 8 N.Y.3d 493 (2007) .......................................................... 3 People v. Schrader, 23 A.D.3d 585 (2d Dept. 2005) .................................. 46 People v. Stuart, 123 A.D.2d 46 (2d Dept. 1986) ....................................... 24 People v. Sturgis, 69 N.Y.2d 816 (1987) .................................................... 33 People v. Tanner, 30 N.Y.2d 102 (1972) .................................................... 39 v People v. Williams, 239 A.D.2d 269 (Pt Dept. 1997) ................................ 44 People v. Williams, 87 N.Y.2d 1014 (1996) ............................................... 29 People v. Wright, 19 N.Y.3d 359 (2012) .................................................... 36 People v. Yong Yun Lee, 92 N.Y.2d 987 (1998) ........................................ 38 People v. Young, 94 N.Y.2d 171 (1999) ..................................................... 33 Roballo v. Smith, 63 N.Y.2d 485 (1984) .................................................... 32 Walker v. Walker, 86 N.Y.2d 624 (1995) ..................................................... 2 State Statutes C.P.L. § 380.20 ............................................................................................ 34 C.P.L. § 430.10 .................................................................................... passim C.P.L. § 440.20 ............................................................................................ 26 C.P.L. § 440.40(1) ....................................................................................... 25 C.P.L. § 450.20(4) ...................................................................................... 25 C.P.L. § 450.30(2) ....................................................................................... 25 C.P.L. § 450.90(1) ......................................................................................... 2 C.P.L. § 470.20 .................................................................................... passim C.P.L. § 470.40(1) .......................................................................... 34, 41, 46 P.L. § 160.15(1), (2) and (4) ................................................................ passim P.L. § 70.25(2) ..................................................................................... passim Vl COURT OF APPEALS STATE OF NEW YORK ----------------------------------------------------------------------x THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- SERGIO RODRIGUEZ, Defendant-Appellant. ----------------------------------------------------------------------x PRELIMINARY STATEMENT By permission of Hon. Robert S. Smith, Associate Judge of the Court of Appeals, entered April 9, 2014 (A 1),1 appellant appeals from a December 12, 2013, order of the Appellate Division, First Department (A 2- 4), People v. Rodriguez, 112 A.D.3d 488 (1st Dept. 2013), which affirmed a judgment of the Supreme Court, New York County, rendered May 23, 2012, resentencing appellant to consecutive terms of 25 years on his conviction of first-degree robbery, P.L. § 160.15(4), and 15 years on his conviction of first-degree assault, P.L. § 120.10(1) (McLaughlin, J., at trial, sentencing, and resentencing). 1 Numbers preceded by "A" refer to pages in appellant's Appendix. 1 On May 1, 2014, this Court granted appellant's motion to assign Robert S. Dean, Center for Appellate Litigation, as counsel on this appeal. JURISDICTIONAL STATEMENT This Court has jurisdiction to entertain this appeal and to review the questions involved. See C.P.L. § 450.90(1 ). Specifically, Point I addresses whether C.P.L. § 430.10 (set out in full at 4, post) prohibited the trial court from changing, on resentencing, two of appellant's previously imposed sentences from concurrent to consecutive, sentences that had been lawfully imposed and had commenced. Though such a claim, going to the power of a court to sentence and its legality, does not require preservation, see People v. Fuller, 57 N.Y.2d 152, 156 (1982), counsel protested the court's resentencing on this ground (A 38-47). Claims concerning a court's sentencing power under§ 430.10 come within this Court's jurisdictional purview. See,~, People v. Richardson, 100 N.Y.2d 847 (2003). Point II concerns whether the imposition of consecutive sentences independently violated P.L. § 70.25(2) (reproduced at 4,post). While, again, preservation was not required for this Court's review, see,~' Walker v. Walker, 86 N.Y.2d 624, 627 (1995), counsel objected to the 2 resentence on this basis as well (A 48-52, 147-49). Assessing the lawfulness of consecutive sentencing also falls within the Court's jurisdictional ambit. See,~, People v. Rosas, 8 N.Y.3d 493 (2007). Last, Point III argues that the court's remarks during the resentencing - disparaging, as irrelevant or as lacking in sincerity, appellant's uncontested and extensive rehabilitative efforts - constituted an abuse of discretion and violated appellant's due-process rights to a reliable and fair sentencing. Before that court, counsel argued that appellant's achievements merited constitutional protection and recognition (A 151 ). Finding them preserved, the Appellate Division "considered," albeit rejected, appellant's "constitutional arguments" based on the resentencing court's response (A 4). The nature of the court's demeaning response constituted the type subject to this Court's review. See,~' People v. Naranjo, 89 N.Y.2d 1047, 1049 (1997). 3 QUESTIONS PRESENTED 1. Whether, notwithstanding a sentencing remand order from the Appellate Division, which this Court affirmed, C.P.L. § 430.10 barred the resentencing court from changing from concurrent to consecutive, thus to appellant's detriment, two of his then-extant and lawful sentences, which he had begun to serve. 2. Whether the court's imposition of consecutive sentences violated P.L. § 70.25(2) and federal and state double- jeopardy and due-process. 3. Whether the court's cynical remarks concerning appellant's uncontested rehabilitative achievements infected the resentencing proceeding, and the 40-year aggregate sentence imposed, with error. STATUTES INVOLVED C.P.L. § 430.10 Sentence of imprisonment not to be changed after commencement Except as otherwise specifically authorized by law, when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced. P.L. § 70.25(2) Concurrent and consecutive terms of imprisonment When more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences, ... must run concurrently. 4 PROCEDURAL BACKGROUND AND SUMMARY OF ARGUMENT In this single-victim aggravated-robbery case, where the victim was shot three times during the course of the robbery, the trial court originally imposed consecutive sentences of 25 years and 15 years for two of appellant's five convictions: attempted murder and first-degree assault. On appeal, the First Department found the consecutive sentences illegal, as the act constituting both crimes - the shooting - was the same. But the appellate court ordered the case remanded so that the trial court could "restructure the [other] sentences to arrive at the [ 40-year] aggregate sentence which it clearly intended to impose." People v. Rodriguez, 79 A.D.2d 644, 645 (Pt Dept. 2010) (A 16). In People v. Rodriguez, 18 N.Y.3d 667 (2012), this Court ruled that C.P.L. § 430.10 did not preclude the Appellate Division from remitting appellant's case for resentencing to the trial court (A 5-10). On May 23, 2012, the trial court resentenced appellant, this time changing from concurrent to consecutive his sentences for the assault and one of the three robbery counts of which he was also convicted, namely, first-degree robbery under P.L. § 160.15(4) (while displaying an apparent firearm) (A 154-56). The court thus meted out the same aggregate prison 5 term - 40 years - that it had originally imposed. Thereafter, the Appellate Division affirmed the resentencing in all respects. See People v. Rodriguez, 112 A.D.3d 488 (1st Dept. 2013) (A 2-4). On this appeal, appellant contends that, notwithstanding this Court's decision authorizing the Appellate Division's remittal, C.P.L. § 430.10 barred the trial court from changing his previously - and lawfully - imposed sentences to his detriment. Neither the Appellate Division's remand authority, under C.P.L. § 470.20, nor the exceptions to§ 430.10 itself, appellant maintains, permitted this adverse change. He also asserts that his newly imposed consecutive sentences run afoul of P.L. § 70.25(2), as would any consecutive sentencing in his case. In essence, he contends that the assault - whose actus reus was the shooting - was part of a single, aggravated robbery, and thus did not allow for cumulative punishment. Last, he asks this Court - or a new sentencing court - to take into account the many and noteworthy rehabilitative achievements during his incarceration, which merit reduction of his sentence. Although he presented these achievements to the trial court at the resentencing proceeding and the prosecution challenged none of them, the court abused its discretion and 6 committed constitutional error by declaring appellant's efforts irrelevant or inauthentic as a sentencing matter. STATEMENT OF FACTS The trial and original sentencing Appellant stood trial before Hon. Edward McLaughlin and a jury for crimes committed against Rodney Paige on a Manhattan street on May 15, 2007. According to Paige's trial testimony, three men, on bicycles, confronted him, one saying, '"Run your chain,"' referring to the gold chain Paige was wearing around his neck, and then saying, "'See this,"' as he produced a black gun. As Paige began to remove the chain, this man shot him in the leg. With the chain stuck around his chin, Paige felt a second shot, in "the stomach, [his] side." The third- and last- shot made him collapse and hit his head on the curb. One of the other perpetrators then took the chain and his cell-phone, and they all rode away. Paige identified appellant as the shooter (A 63-67, 73-77). The gunshots rendered Paige unable to walk (A 69-72). As Shailaja Kalva, M.D., one of Paige's doctors, more particularly described his injuries, the bullet to Paige's leg had "just scraped past the joint and didn't enter the joint, caused soft-tissue injury"; the side ("flank") injury had left a 7 bullet lodged in his twelfth vertebra and caused a spinal-cord injury; and the abdomen wound had caused openings in the small bowel (A 78-79). The jury found appellant guilty of attempted second-degree murder, first-degree assault (intentionally causing serious physical injury with a deadly weapon), two counts of first-degree robbery (causing serious physical injury; displayed an apparent firearm), and second-degree robbery (aided by another actually present) (A 90-91). Appearing before Justice McLaughlin for sentencing on October 14, 2008, appellant (born in 1984) admitted a prior (2006) violent-felony conviction - for second-degree assault, P.L. § 120.05(2). According to the prosecutor's description of this crime, appellant had cut the complainant's face with a razor blade. Calling appellant "someone who commits gratuitous violence," the prosecutor urged the court to impose consecutive sentences "for the distinct robbery and for the distinct assault" (A 96-97). Defense counsel, while noting that his client maintained his innocence, expressed as well that appellant was "certainly sorry" about Paige's condition. Counsel also protested the imposition of consecutive sentences, contending that the robbery and the shooting constituted "one continuous act" (A 98-99; see also Probation Department's pre-sentence report, A 104- 8 09). The court echoed the prosecutor's view of appellant's character. It then sentenced appellant to 25 years for attempted murder. "For assaulting [Paige] on either the first, the second or the third gratuitous shot," it imposed a consecutive sentence of 15 years. "It's a total of 40 years in prison," the court stated, and then imposed concurrent "twenty-five years determinate" for both first-degree robbery convictions and "fifteen years determinate" for the second-degree robbery conviction. It also imposed concurrent terms of five years' post-release supervision for all the convictions (A 99-103). The original appeals Insofar as relevant here, on his original appeal to the Appellate Division, appellant argued that, because the convictions for attempted murder and assault were premised on the same act, the imposition of consecutive sentences for these crimes violated P.L. § 70.25(2). The Appellate Division agreed. But it ordered the case remanded so that the trial court could "restructure the [other] sentences to arrive lawfully at the [40- year] aggregate sentence which it clearly intended to impose." People v. Rodriguez, 79 A.D.3d 644, 645 (1st Dept. 2010). Such "restructur[ing]," the 9 appellate panel opined, would not violate C.P.L. § 430.10 because the sentences would not be changed but "only ... realign[ ed]" and because they would not be increased beyond the 40-year aggregate term initially imposed. Id. at 646 (A 15-18). On March 22, 2012, this Court (by a vote of 4 to 3) upheld the Appellate Division's remand order. The majority determined that § 430.10 does not "preclude[] the Appellate Division from remitting a case for resentencing after concluding that the trial court imposed unlawful consecutive sentences on two of the counts." People v. Rodriguez, 18 N.Y.3d 667, 669 (2012) (A 5-14). The majority located the Appellate Division's authority to remand a case for resentencing in C.P.L. § 470.20. Calling its holding "narrow," the majority also deemed "premature" any taking of a position on whether the "trial court may [on remand] sentence defendant other than to make all sentences run concurrently" (A 5-10). The resentencing Defense submission In a memorandum, appellate counsel argued that C.P.L. § 430.10 barred the trial court from disturbing, to appellant's prejudice, any of his sentences, which then stood at 25 years and which he had begun to serve. 10 Counsel also argued that P.L. § 70.25(2) as well as federal and state constitutional double-jeopardy and due-process protections barred any consecutive sentencing. See appellant's Resentencing Memorandum at A 38-52. Last, counsel provided the court with detailed information about appellant's background as well as his in-prison accomplishments - attained subsequent to his original sentencing - that, counsel maintained, called for not increasing his punishment beyond 25 years. 2 Regarding appellant's circumstances, the memorandum revealed the following: Appellant was just 22 years old at the time of the instant offense. The product of a difficult upbringing - he was raised by his grandmother because his mother was only 15 years old when she had him and his father was incarcerated - he had turned to "life in the streets," becoming involved with drugs and crime when he was 15 years old, after a prolonged and painful custody battle between his paternal grandmother and his mother (A 32). Since his incarceration, however, appellant turned to positive endeavors and sought to better himself. He voluntarily enrolled in the 2 Appellate counsel's colleague met with appellant at his place of confinement, Shawangunk Correctional Facility, on April 17, 2012, and with his wife, Raquel Rodriguez, in counsel's office, on May 2, 2012. The information in this section of the memorandum came from these conversations, as well as from appellant's institutional records and letters of support - also submitted with the memorandum (A 32). 11 Front-Line Violence Awareness Program at Shawangunk Correctional Facility, where he addressed the issues underlying the instant crime. Front- Line is designed to "foster ... individual responsibility and accountability by promoting awareness for the repercussions that accompany negative behavioral responses while offering alternatives to the prevailing trends toward illicit organization and group confrontation" (A 32-33). In January 2011, appellant received a Certificate of Accomplishment for successfully completing 40 hours (A 110). He also completed aggression replacement training (Inmate Program Assignment printout, A 111-12). In addition, he began to place a strong emphasis on his faith and was attending a Bible study and mass every Wednesday (A 33). Appellant's exemplary disciplinary history reflected his commitment to positive behavior. Since first entering state custody over four years ago, he received only one disciplinary ticket - a Tier 3 ticket for being out of place, when he was in his cell instead of at his program assignment. For this infraction, he received only 30 days ofkeeplock (meaning he had to remain in his cell for the majority of the day), a relatively minor punishment for a Tier 3 infraction (Inmate Disciplinary History and Incident Report, A 113). He received that ticket in August 2009, and had maintained a perfect 12 disciplinary record since that time (A 33). The memorandum further noted that he was also using this time to help others. He enrolled in the PACE program, which teaches counseling to those afflicted with HIV and AIDS, and awards credits from the Department of Labor toward becoming a peer counselor. He also joined the Inmate Program Associate program, in which inmates assist Program Services staff in the direct provision of services to other inmates (A 34). Among the stated goals of this program are "provid[ing] staff with inmate assistants who can, under supervision, disseminate technical information, provide life skills seminars, and tutor inmates who need and accept such assistance," and "provid[ing] positive inmate role models for individuals in education and self-help programs." DOCCS, Program Services-IP A, http://www.doccs.ny.gov I ProgramServices/transitional.html#ipa (last visited May 2, 2012). During his incarceration, appellant remained close to his family. He and his long-time girlfriend, Raquel Rodriguez, married. They were allowed trailer visits, permitted only for inmates with excellent records. Ms. Rodriguez, employed at a hardware store, had seen a dramatic change in her husband since his incarceration - he had completely "changed his 13 and indirectly my brother set me on a path of my own to better myself." Appellant kept close ties to his grandmother, who visited him "all the time." In addition, he had begun to form a closer bond with his father, who was released from prison in 2007 (A 36). While incarcerated, appellant obtained vocational skills. He successfully completed a year-long carpentry and woodworking course in August 2011. He worked as a laundry operator, a porter, a clerk in the law library, a stores laborer, and a salvage laborer. Progress reports from his various jobs reflected that he earned scores of either excellent or above average in every area in which he was evaluated and that he had "a good work ethic," demonstrating the seriousness with which he approached his assignments (progress reports, A 115-19). Based on his excellent work, he became a leader within the prison community, and was promoted to the title of group-leader assistant on the utility gang (A 36-37). Appellant, the memorandum concluded, was making the changes necessary to lead a productive and crime-free life upon release. He was constantly working toward self-improvement, participating in a myriad of programs that address both his needs and the needs of others, and, despite his imprisonment, he continued to play an important and positive role within 15 his family (A 37). Prosecution submission The prosecution contested appellant's arguments that C.P.L. § 430.10 and P.L. § 70.25(2) barred consecutive sentences. It did not challenge, as a factual matter, any of appellant's assertions regarding his in-prison behavior. Instead, citing People v. Kuey, 83 N.Y.2d 278 (1994), it contended that the "proper focus" of the resentencing should be appellant's record prior to the commission of the crime, but that, in any case, "nothing" appellant submitted "remotely" "mitigates" the crime or called for a lesser sentence than the 40 years originally imposed. People's Resentencing Memorandum at A 140. Court's C.P.L. § 430.10 decision In a written decision, issued prior to the resentencing hearing, the court ruled that C.P.L. § 430.10 "provided no legal impediment" to its imposing consecutive sentences on resentencing to reach the 40-year aggregate term originally imposed. The court did not do so on the basis of this Court's decision, noting that this Court had "declined to rule" on whether anything other than concurrent sentences could be imposed on remand. Rather, the court invoked the Appellate Division's decision, which 16 had found that § 430.10 erected no barrier to consecutive sentencing. Thus, the trial court stated, it would decide at the resentencing hearing whether P.L. § 70.25(2) permitted consecutive sentencing. It would 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." Decision on Resentencing, Ind. 5455/07, 5/22112 (A 142-43). Resentencing hearing and decision At the resentencing hearing, the defense reiterated its statutory and constitutional objections to any change, to appellant's detriment, of his current sentences (A 147-49). Noting the presence in court of several of appellant's family members, including his wife and father, the defense also amplified its submission regarding appellant's in-prison conduct. Specifically, counsel argued that appellant's federal and state due-process rights to reliable and fair sentencing, his federal and state protections against cruel and unusual punishments, and the rehabilitative purposes of sentencing all required the court to favorably take into account his post- conviction accomplishments and not increase his sentence to 40 years. Increasing it, counsel further asserted, would also constitute an abuse of 17 discretion as a matter of law (A 150-52). For its part, the prosecution urged the legal propriety of consecutive sentences, reasoning that the robbery and shooting were separate acts. It also urged the court to impose consecutive punishment: The court "should give what you [previously] gave." In the People's opinion, if appellant had "learned from this, he should be applauded." But what could not change, they argued, was the complainant's inability to walk (A 146-47). The court seconded the prosecution in noting the complainant's unabated disability. As for any positive change that an inmate, like appellant, might effect while incarcerated, the court noted that the Legislature, though "remarkably interested in rehabilitation ... and forward-movingness," had not "legislated" for "a fortuitous opportunity or even a planned opportunity for periodic reviews of inmate conduct." Absent such legislation, the court declared, it was "impossible ... to say ... that the progress everyone concedes Mr. Rodriquez has made was completely unaffected by the beneficial prospects of a good prison record, either at the appeal or at the parole review." Thus, the court concluded, his "four to five years of good conduct in anticipation of parole review and appeal process" did not suffice to "lessen the appropriateness of sentence" 18 that the court had previously given him (A 152-54). Accordingly, the court reimposed that sentence - an aggregate 40- year maximum - meting out the same individual sentences but this time running the 15-year assault-sentence consecutive to the 25-year term for first-degree robbery under P.L. § 160.15(4) (displaying an apparent firearm) (A 154-56). The resentencing appeal to the Appellate Division On December 12, 2013, the Appellate Division affirmed appellant's resentencing in all respects. People v. Rodriguez, 112 A.D.3d 488 (1st Dept. 2013) (A 2-4). As to appellant's argument that C.P.L. § 430.10 barred the trial court from changing two of appellant's sentences from concurrent to consecutive because he had begun to serve them, the Appellate Division, referring to its prior opinion in the case, found no violation of§ 430.10. More, as this Court had authorized the Appellate Division's prior order remanding the case for resentencing, that itself had validated the "sentence now under appeal" as "authorized by law" under C.P.L. § 430.10. Nor, according to the Appellate Division, did the imposition of the consecutive sentences violate P.L. § 70.25(2). According to the panel, the robbery, with the attendant display of the apparent firearm, P.L. § 160.15(4), and the 19 assault, premised on the shooting, constituted separate acts. Last, the resentencing court's imposition of consecutive sentences did not, in the panel's view, effect an abuse of discretion. Citing People v. Kuey, 83 N.Y.2d 278 (1994), the panel stated that nothing obliged the resentencing court to consider appellant's "alleged rehabilitative progress while incarcerated." In any case, observed the panel, the resentencing court "did, in fact, remark on such progress, but reasonably concluded that it was outweighed by the extreme heinousness of defendant's crime ... "(A 2-4). As to all of appellant's claims, the opinion concluded, the panel "considered and rejected each of [his] constitutional arguments" (A 4). 20 ARGUMENT POINT I NOTWITHSTANDING A SENTENCING REMAND ORDER FROM THE APPELLATE DIVISION, WHICH THIS COURT AFFIRMED, C.P.L. § 430.10 BARRED THE RESENTENCING COURT FROM CHANGING FROM CONCURRENT TO CONSECUTIVE, THUS TO APPELLANT'S DETRIMENT, TWO OF HIS THEN- EXTANT AND LAWFUL SENTENCES, WHICH HE HAD BEGUN TO SERVE. In this aggravated-robbery case, where the lone victim was shot during the course of the robbery, the trial court originally imposed consecutive sentences of 25 years and 15 years for two of appellant's five convictions: attempted murder and first-degree assault. On the original appeal, the Appellate Division found the consecutive sentences illegal because the act constituting both crimes - the shooting - was the same. But the court also ordered the case remanded so that the trial court could "restructure the [other] sentences to arrive at the [ 40-year] aggregate sentence which it clearly intended to impose." People v. Rodriguez, 79 A.D.2d 644, 645 (1st Dept. 2010). In People v. Rodriguez, 18 N.Y.3d 667 (2012), a majority of this Court ruled that C.P.L. § 430.10 did not preclude the Appellate Division from remitting appellant's case for resentencing to the trial court. 21 Upon that remand, the trial court again achieved the 40-year aggregate by changing two other of appellant's previously imposed, and lawful, sentences from concurrent to consecutive - 25 years for first- degree robbery per P.L. § 160.15(4) (displays an apparent firearm) and 15 years for the first-degree assault. The Appellate Division thereafter affirmed the trial court's resentencing in all respects. See People v. Rodriguez, 112 A.D.3d 488 (1st Dept. 2013) (A 2-4). In specifically rejecting appellant's renewed C.P.L. § 430.10 challenge to the resentencing court's conduct, the Appellate Division found that this Court's decision itself rendered the resentencing court's conduct and "sentence now under appeal ... authorized by law." And it otherwise rebuffed appellant's§ 430.10 arguments for the reasons stated in its prior decision in the case (A 2-3). Appellant, however, does not read this Court's decision as having already approved the resentencing court's actions under§ 430.10. In fact, the court's changing of appellant's otherwise lawful sentences - which he had begun to serve - from concurrent to consecutive violated § 430.10. 22 A. This Court did not decide the question whether the Appellate Division's statutory remand-authority itself authorizes a trial court's violation of C.P.L. § 430.10 upon such a remand- and the answer is that it does not. In its prior decision, this Court found, as a "narrow issue," that § 430.10 does not preclude the Appellate Division from remitting a case to the trial court for resentencing on all counts in the event that "sentence on fewer than all of the counts was flawed." People v. Rodriguez, 18 N.Y.3d 667, 671 (2012) (A 8-9). The Court located the Appellate Division's remand authority in C.P.L. § 470.20, citing two subdivisions - 3 and 4 - that permit such remittal. See id. The Court did not take a position, however, as to whether § 430. l 0 permits a trial court, on such a remand, to change a defendant's extant sentences from concurrent to consecutive. See id. As the Court otherwise put it, "[ w ]hile it is premature for us to take a position on whether the trial court may sentence defendant other than to make all sentences run concurrently, it is clear that CPL 430. l 0 does not preclude the Appellate Division from remitting for resentence." 18 N.Y.3d at 670; A 7. Examination of the open question-whether the trial court may itself change the defendant's otherwise lawful sentences - compels the answer "no." While, as the Court has determined, § 430. l 0 does not constrain the 23 Appellate Division from remitting a case to the trial court for resentencing under§ 470.20, nothing in§ 470.20 - or elsewhere in the law- authorizes a trial court to change a defendant's "commenced" and lawful sentence to his detriment- i.e., to escape§ 430.lO's constraints-in the circumstances presented here. To the contrary. Section 470.20(3) authorizes sentencing relief to a defendant upon appellate dismissal for legal insufficiency of one or more, but not all, of his convictions. By the provision's terms, either the appellate court may grant it with respect to the affirmed counts, or the appellate court may remand the case to the trial court for resentence on those counts. As the last clause of the provision - referring to "further sentence reduction" - reinforces, the purpose of such a remand is to enable the trial court to consider reducing the remaining sentences. Such reduction may be appropriate where the trial court's original sentencing determination may have been influenced by the subsequently dismissed convictions. See,~' People v. Stuart, 123 A.D.2d 46, 54 (2d Dept. 1986). Subdivision ( 4) - requiring remittal to the trial court upon appellate reduction of a conviction to one for a lesser included offense - similarly contemplates only a corresponding sentence reduction (authorizing the trial court to sentence the defendant "accordingly"). 24 The introductory clause of§ 470.20 - advising intermediate appellate courts to both "rectify any injustice to the appellant" and "protect the rights of the respondent"-' does not itself authorize the trial court's increase of a defendant's then-current and lawfully imposed sentences. This general, hortatory language does not state a remedy "specifically authorized by law" so as to overcome § 430.1 O's prohibition. Cf., ~, Brusco v. Braun, 84 N.Y.2d 674, 681 (1994); Bernstein Family Ltd. v. Sovereign Partners, 66 A.D.3d 1, 6 (1st Dept. 2009) - both recognizing that specific statutory directives trump general ones. In any event, leaving a defendant's lawful sentences in place hardly works an "injustice" to the People. That the People may not move to set aside lawful sentences, see C.P.L. § 440.40(1), or to appeal from them, see C.P.L. §§ 450.20(4), 450.30(2), confirms the point. See also People v. Junco, 43 A.D.2d 266, 268 (1st Dept.) (observing that the Appellate Division's "jurisdiction to review a sentence does not include the power to increase"), aff d 35 N.Y.2d 419 (1974). A finding that an appellate court's remand order could per se authorize a trial court's violation of§ 430.10 would also present serious federal and state due-process and equal-protection concerns - considering that defendants who have achieved sentencing relief in the trial courts, by 25 way of C.P.L. § 440.20 motions, possess protection from§ 430.10 violations. In People v. Romain, 288 A.D.2d 242 (2d Dept. 2001), for example, after the defendant, by way of a C.P.L. § 440.20 motion in the sentencing court, successfully challenged consecutive 25-to-life sentences for two counts of first-degree murder, the Second Department held that the sentencing court lacked authority under§ 430.10 to make those sentences instead run consecutively to a sentence for second-degree murder. See 288 A.D.2d at 243. See also People v. Kadry, 63 A.D.3d 856, 857 (2d Dept. 2009) (citing Romain in finding that the sentencing court violated § 430.10 when it granted defendant's§ 440.20 motion regarding two, unlawfully imposed, consecutive sentences of 5 to 15 years each, but then altered the sentences, albeit concurrent, to run 8 to 24 years). A defendant's mere choice of forum to gain redress from an unlawful sentence should not make the difference in his exposure vel non to adverse consequences. Interpretation of§ 4 70.20, together with § 430.10, should avoid such constitutional doubts. See Statutes, § 150, McKinney's Cons. Laws of New York Ann., Book 1; ~,Courtesy Sandwich Shop v. Port of New York Authority, 12 N.Y.2d 379, 389 (1963) ("We have said that where there are two possible interpretations the court will accept that which avoids 26 constitutional doubts.") (internal citations omitted). B. C.P.L. § 430.10 otherwise forbad any adverse alteration of appellant's then-current and lawful sentences. Except for a trial court's exercise of its inherent powers to correct its records regarding an inadvertent or clerical mistake or obvious misspeaking, § 4 3 0 .10 forbids it from changing - to the defendant's disadvantage - a lawful sentence once commenced. See People v. Richardson, 100 N.Y.2d 847, 850-51, 853 (2003). The Court has applied this rule in a case involving convictions on multiple counts after trial, voiding the trial court's changing of certain of the sentences from concurrent to consecutive after the defendant had begun to serve them. See People v. Adkinson, 88 N.Y.2d 561, 581 (1996). Because the record did not show that the judge's failure to designate the counts as consecutive (effected through his silence, see P.L. § 70.25(1)(a)) had been accidental, "there was no basis for any subsequent change in the sentence to reflect a consecutive relationship among the sentences for those counts." Id. (internal citations omitted). A similar result obtained in Richardson: The trial court had violated§ 430.10 by purporting to "clarify," at a "reopen[ ed] sentencing proceeding," that the sentences it had originally imposed were intended to run consecutively to an undischarged term of imprisonment. 100 N.Y.2d at 850. 27 Here, the trial court's original sentencing decision did not result from a clerical error or misspeaking. Rather, the court pronounced consecutive sentences only for the attempted-murder and assault convictions, and purposefully did so because of what it termed the "second or the third gratuitous shot" (A 101-02). The court's silence regarding the consecutive or concurrent status of the other sentences - which thereby resulted in their concurrent imposition, see P.L. § 70.25(1)(a)-thus paralleled the court's silence in Adkinson. See 88 N.Y.2d at 581. In both instances, the silence rendered§ 430.lO's prohibition applicable. See,~' People v. Allende, 78 A.D.3d 553, 553 (1st Dept. 2010). The description by the Appellate Division's majority- in its initial opinion3 - of any (then prospective) change in appellant's case as "only to realign which sentences are to run consecutively," Rodriguez, 79 A.D.3d at 646; A 18, cannot be reconciled with these cases and with § 430.10. No one disputes that the sentences in contention to be "realign[ ed]" were then "in accordance with law ... [and had] commenced." And, by any reasonable understanding of the words, "realign[ing]" them from concurrent to 3 In its opinion regarding the resentencing, the Appellate Division invoked its earlier decision to reject appellant's§ 430.10 arguments. See Rodriguez, 112 A.D.3d at 488-89; A 3. 28 consecutive would effect and did effect a "change[]." That Adkinson and Richardson and Allende prevented similar "realign[ ments ]" should put the matter to rest. See also, u_, People v. Carpenter, 19 A.D.3d 730, 731 (3d Dept. 2005) ("if previously imposed valid sentences were directed to run concurrently, the court lacks the authority to change them to consecutive sentences, even if the duration of those sentences remains the same"); Romain, 288 A.D.2d at 242-43. Since appellant was convicted after trial - and not by a guilty plea - any argument that he should have been at risk for the aggregate 40-year term originally imposed is unavailing. As the Court noted in Richardson, its "§ 430.10 jurisprudence," prior to that case, had "primarily involved sentencing determinations pursuant to negotiated plea agreements." 100 N.Y.2d at 850-51. These guilty-plea cases, the Court observed, "have held that courts have the inherent authority to remedy an illegal sentence by permitting modification to bring the sentence within the legal range that the defendant understood would be available upon conviction." Id. at 851. The Court cited as illustrative People v. De Valle, 94 N.Y.2d 870 (2000), and People v. Williams, 87 N.Y.2d 1014 (1996). These cases thus involve considerations unique to guilty pleas, which include as well the possibility 29 of plea withdrawal in the event that the court's correction of the illegal sentence does not conform to the initially bargained-for range. See De Valle, 94 N.Y.2d at 872; cf. People v. Laureano, 87 N.Y.2d 640, 643, 645 (1996) (modifying defendant's two sentences - imposed after a guilty plea - to run concurrently, where "the People no longer request vacatur of defendant's guilty pleas if we find the sentences illegal," thus presenting "no occasion to consider whether vacatur would be the proper remedy when defendant has agreed to the sentence as part of a plea bargain"); see generally People v. Farrar, 52 N.Y.2d 302, 307-08 (1981). Accordingly, these guilty-plea cases did not control the outcome in Richardson - which involved conviction following a trial. Rather, the Richardson Court declared "dispositive" the "rationale of Adkinson," a trial case. 100 N.Y.2d at 852. Adkinson and Richardson similarly control the trial-case outcome here.4 4 In appellant's case, the Appellate Division's truncated quotation from Williams - a guilty-plea case -thus did not defeat appellant's§ 430.10 claim. In rejecting Williams's double-jeopardy argument, this Court observed that the claim would be "colorable only if the defendant's sentence had been increased beyond his legitimate expectations of what the final sentence should be." 87 N.Y.2d at 1015. Though the Appellate Division's quoting of the opinion stopped there, Williams went on to clarify that, "[i]n view of the court's statement during the plea proceedings that the defendant could receive up to 15 years in prison, there could be no expectation of finality on his part with respect to the lesser and illegal sentence." Id. (citations omitted). Put to the side that Williams was not, by these observations, addressing a § 430.10 argument. It (continued ... ) 30 The Appellate Division's concurring opinion in the initial appeal in appellant's case, see 79 A.D.3d at 646-50; A 19-26, does not withstand analysis either. The concurrence would read "the entire sentence ... to be the 'sentence of imprisonment"' in§ 430.10, so as to permit "restructuring" of what the concurrence calls its lawful "[c]omponents" in the event one or more of them is found unlawful. According to the concurrence, the statute's syntax makes this reading clear (A 22). Syntax alone, however, renders an alternative, and contrary, reading at least equally plausible. The relevant portion of§ 430.10 reads: "when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed ... once the term of the sentence has commenced." If the statute meant to refer to one, global, sentence 'package,' the modifier "such" in the subsequent references to the sentence would appear to be superfluous. In any event, the concurrence's reading would violate fundamental rules of statutory construction that statutory language should be read to harmonize with the entire act or scheme of which it is a part. See Statutes, 4( ... continued) premised its conclusion on the defendant's having negotiated for a particular sentence- range - a circumstance applicable to convictions by guilty plea, but not after trial. That the "realign[ment]" the Appellate Division endorsed has resulted in reimposition of the same aggregate prison term does not, then, excuse the § 430.10 violation. 31 §§ 97, 98, McKinney's op cit. According to these principles, "[s]tatutory language, however strong, must yield to what appears to be intention and that is to be found not in the words of a particular section alone but by comparing it with other parts or provisions of the general scheme of which it is part." § 97, at 213. The concurrence's reading would severely conflict with this State's comprehensive provisions in Penal Law article 70 regarding sentences of imprisonment. These provisions recognize discrete terms of imprisonment depending on the category of crime and the offender's prior record, and govern how multiple sentences may run concurrently or consecutively to each other and how they are to be calculated. See Donnino, Practice Commentary to P.L. § 60.00, McKinney's Cons. Laws ofNew York Ann., Book 39, at 59-87; see,~' Matter of Roballo v. Smith, 63 N.Y.2d 485, 489 (1984) (observing that P.L. § 70.30 "was not intended to restrict the number or length of the sentences that may be imposed, but merely to direct how the aggregate length of those sentences should be calculated"); Wilson v. McGinnis, 413 F.3d 196, 200 (2d Cir. 2005) (observing that§ 70.30 "does not purport to 'connect' or relate [prison] terms for any purpose other than to compute how long the defendant is to be incarcerated"). 32 The concurrence's 'single-sentence' reading of§ 430.10 would also conflict with C.P.L. §§ 380.20 and 470.20(3). The former provision requires the pronouncement of sentence "on each count" of conviction. The latter permits an intermediate appellate court to leave undisturbed the sentences of offenses it has found based on sufficient evidence while dismissing other convictions in the case for insufficient evidence. New York thus does not provide for grouping offenses together and imposing a single 'lump' sentence. See,~' People v. Sturgis, 69 N.Y.2d 816, 817 (1987) (where the trial court imposed a term of one to three years, "without specifying to which of the three counts that sentence applied," sentence violated§ 380.20, requiring resentencing).5 In sum, § 430.10 forbad the trial court from "realigning" or in any other way adversely changing appellant's then-extant and lawful sentences. The Appellate Division's contrary determination should therefore be reversed. This Court may itself restore appellant's sentences, thus making 5 People v. Young, 94 N.Y.2d 171 (1999), does not provide to the contrary. There, in assessing a trial court's resentencing for potential vindictiveness, this Court observed: "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." Id. at 181. Whether or not the trial court in appellant's case may have shared that view, the fact remains that this State mandates individual sentences for individual crimes. 33 them all concurrent, or may reduce them further, or it may remit the matter to the Appellate Division or trial court to take such corrective action. See People v. LaSalle, 95 N.Y.2d 827, 892 (2000) (observing that intermediate appellate court possesses 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"); C.P.L. § 470.40(1) (authorizing this Court to take or direct such corrective action as the intermediate appellate court would have been required or authorized to take). 34 POINT II THE COURT'S IMPOSITION OF CONSECUTIVE SENTENCES VIOLATED P.L. § 70.25(2) AND FEDERAL AND STATE DOUBLE-JEOPARDY AND DUE-PROCESS. On his original appeal to the Appellate Division, that court found that appellant's sentences for attempted murder and assault could not run consecutively, which thereby reduced his aggregate prison sentence from 40 to 25 years. But, in concomitantly remanding to the trial· court for resentencing, it opined that his first-degree robbery conviction under the displayed-an-apparent-firearm theory, P.L. § 160.15(4), constituted an act separate from the shooting of the complainant, and would therefore allow for a sentence consecutive to a conviction based on the shooting. See People v. Rodriguez, 79 A.D.3d 644, 645 (1st Dept. 2010) (A 16-17). The trial court took up the suggestion, thus imposing a 40-year aggregate term, which, on appellant's subsequent appeal to the Appellate Division, that court approved. See People v. Rodriguez, 112 A.D.3d 488, 489 (1st Dept. 2013) (A 3). In fact, as would any consecutive sentencing in this case, this punishment contravened consecutive-sentencing law, as well as federal and state double-jeopardy and due-process principles. 35 Under P.L. § 70.25(2), "sentences imposed for two or more offenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other." People v. Wright, 19 N.Y.3d 359, 363 (2012) (internal quotation marks and citation omitted). The material-element prong "does not require incorporation of every element of the first offense into the material element of the other; the statute requires only incorporation of the 'act or omission,' that is, the bodily movement or failure to act that constitutes the offense." People v. Laureano, 87 N.Y.2d 640, 644 (1996) (internal citations omitted). "The defendant benefits if either prong is present, and the prosecution's burden is to countermand both prongs." Wright, 19 N.Y.3d at 363. Despite the existence of either prong, the prosecution may yet prevail by showing that the defendant committed "separate and distinct acts." Id. at 364 (internal quotation marks and citation omitted). The People cannot meet their burden here. First, the law tolerated no consecutive sentences in this case because all the crimes involved a "single act." Both iterations of first-degree robbery charged here, as well as the second-degree robbery charge, 36 constituted a "single act" under P.L. § 70.25(2). People v. Ramirez, 89 N.Y.2d 444 (1996), dictates this conclusion, where the Court observed, concerning the robbery of a security guard who the perpetrators "repeatedly shot in the back" during the crime: Supreme Court properly determined that counts 2, 5 and 8 under Penal Law§ 160.15(1), (2) and (4), respectively, relating to the forcible taking of [this complainant's property] must run concurrently. Defendant was armed, displayed his weapon and caused the complainant's injuries, all of which constitute a single act against [him]. Id. at 448, 454 n.6; see also People v. Frazier, 16 N.Y.3d 36, 41 (2010) (citing Ramirez and observing that, "when the actus reus is a single, inseparable act that violates more than one statute, single punishment must be imposed") (internal quotation marks and citations omitted). Since here, as in Ramirez, the infliction of the complainant's injuries contributed to the "single act" that comprised all the robbery charges, the assault and the attempted-murder convictions necessarily constituted part of that same "single act" and allowed sentences that ran only concurrently with each robbery charge. Second - and specifically addressing the two consecutive sentences imposed - the actus reus of the assault, the shooting, constituted a material element of the robbery, P.L. § 160.15(4), in that it contributed to the 37 requisite "force" of the taking. See P.L. § 160.00, defining robbery as "forcible stealing," "when, in the course of committing a larceny, [a person] uses or threatens the immediate use of physical force upon another person for the purpose of. .. (2) [c]ompelling the owner of [the] property ... to deliver up the property .... " Cf. Frazier, 16 N.Y.3d at 41 (finding that larceny is "not a necessary component" of burglary, which requires only unlawfully entering or remaining in a dwelling with the intent to commit a crime therein). Last, the assault and robbery did not constitute separate, successive acts. As the complainant testified and respondent does not dispute, the shooting not only occurred during the robbery, but the taking of the complainant's property did not occur until after the shooting. See Appellate Division Resentencing Brief for Respondent [hereinafter RB], at 24-25. This case thus did not resemble Frazier, where the Court observed regarding the two crimes at issue: "The crime of burglary was completed when defendant entered each complainant's apartment with the intent to commit a crime. The ensuing larceny was a separate crime, perpetrated through defendant's separate act of stealing property." 16 N.Y.3d at 42 (internal citation omitted); accord People v. Yong Yun Lee, 92 N.Y.2d 987, 989 38 (1998) (burglary complete upon unlawful entry, so that robberies of two victims that followed constituted separate acts). Because the robbery in this case was not completed until after the shooting, it also differed starkly from People v. Tanner, 30 N.Y.2d 102 (1972). There, this Court upheld consecutive punishment for robbery and manslaughter, finding that the record showed that they were "successive separate acts," with the shooting of the victim an "unnecessary afterthought." Id. at 108. Summarizing the facts, the Court stated that, after the "robbery [of a taxi driver] was completed and while the taxi driver was sitting in his cab offering no resistance, [the] defendant opened the door of the cab, shot and killed the driver." Id. at 105. Examination of the trial court's instructions in appellant's case on the elements of the crimes reinforces the conclusion that the shooting did not constitute a separate act. See,~, People v. Battles, 16 N.Y.3d 54, 58-59 (2010) (examining court's jury instructions on depraved-indifference murder in assessing propriety of consecutive sentences). With respect to the first-degree robbery charge specifically encompassing the complainant's injury-by-shooting, P.L. § 160.15(1), the court explicitly charged, as the relevant element, that the serious physical injury was caused "in the course 39 of the commission of the crime" (A 85-86)- omitting the "or of immediate flight therefrom" theory. This circumstance - and the jury's conviction- precluded a finding of assault (or attempted murder)-as-afterthought. Cf. Battles, 16 N.Y.3d at 58-59 (finding that because, under the court's charge, "[a] determination of the cause of the ignition of the fire was unnecessary to the determination of defendant's guilt ... [on] the depraved indifference counts, ... defendant's argument that the actus reus for all of those crimes was the ignition of the fire fails"); People v. Parks, 95 N.Y.2d 811, 815 (2000) (concurrent sentences required where neither the prosecution's theory nor the court's charge "indicate[d] which [of two] robber[ies] was the predicate" for the felony murder, rendering it "impossible to tell which robbery is a separate and distinct act from the felony murder"). Respondent's rejoinder-that the shooting was excessively violent and, in its opinion, did not advance the robbery, see RB at 26 - misses the mark. First, as respondent's lack of citation betrays, nothing in the elements of any of the crimes charged or in the court's instructions required a determination whether the shooting furthered the robbery. For consecutive sentencing purposes, the shooting's occurrence during the robbery, as a temporal matter, required punishment concurrent with the robbery. Cf.,~' 40 Laureano, 87 N.Y.2d at 645 (rejecting prosecution's "separate and distinct" argument for first-degree robbery, per P.L. § 160.15(1), where the injury was caused by a stabbing, and manslaughter, effected by the stabbing - where defendant admitted committing the robbery and causing the victim serious physical injury). Respondent's argument rings particularly hollow because the People leveraged the shooting as integral to robbery, in charging the first-degree robbery under P.L. § 160.15(1). Consecutive sentencing in this case based on the shooting not only violates P.L. § 70.25(2). It punishes appellant twice for the same crime, thereby violating his federal and state constitutional and state statutory double-jeopardy rights. See Ramirez, 89 N.Y.2d at 451 n.5 (observing that the "constitutional prohibition against double jeopardy 'is embodied in, if not ... extended by' Penal Law § 70.25(2)") (internal citation omitted). This Court may itself restore appellant's sentences, thus making them all concurrent, or may reduce them further, or it may remit the matter to the Appellate Division or trial court to take such corrective action. See People v. LaSalle, 95 N.Y.2d 827, 892 (2000); C.P.L. § 470.40(1). 41 POINT III THE COURT'S CYNICAL REMARKS CONCERNING APPELLANT'S UNCONTESTED REHABILITATIVE ACHIEVEMENTS INFECTED THE RESENTENCING PROCEEDING, AND THE 40-YEAR AGGREGATE SENTENCE IMPOSED, WITH ERROR. In its written decision preceding the resentencing hearing, the court stated that it "must consider" appellant's conduct "since sentence was originally imposed in 2008." As detailed ante, at 11-15, the defense, in an factually unchallenged submission, described that conduct. It showed that appellant had sought to address extensively the issues underlying the instant offense, as evidenced by his exemplary disciplinary history; that he had obtained valuable vocational training and dedicated himself to helping others; and that, despite his incarceration, he had maintained, and even strengthened, his family ties. At the hearing, however, the court "consider[ed]" appellant's efforts and achievements as, at best, irrelevant. In that vein, it remarked that the law did not include periodic judicial-review of previously imposed sentences. Worse, the court may have turned appellant's laudable behavior against him: Several remarks indicated that it viewed appellant's post- conviction rehabilitative achievements as a ploy - undertaken in the hope 42 that he might win the appellate-review-and-remand lottery. Contrary to the Appellate Division's determination that the court committed no constitutional or other error, its expressions of cynical disdain - and consequent imposition of the 40-year prison term - betrayed an incorrect understanding of the law, and, as counsel had forewarned, see ante at 1 7, effected federal and state constitutional error and an abuse of its sentencing discretion as a matter of law. According to the Appellate Division, as an initial matter, the [re]sentencing court simply "was not required to consider defendant's alleged, rehabilitative progress while in incarcerated" (A 4). For this proposition, the Appellate Division cited People v. Kuey, 83 N.Y.2d 278, 282-83 (1994). Kuey, however, holds only that the law does not require a resentencing court to obtain an updated presentence report on a defendant who has continuously been in custody since his original sentence. At the same time, the law obliges the resentencing court to afford the defense the opportunity to "supply information about [the defendant's] subsequent conduct." Id. Taking such an opportunity would amount to a meaningless exercise unless the law also obliged the resentencing court to consider - i.e., engage with, in good faith-the new information. 43 In fact, courts have considered - to a prisoner's benefit - the prisoner's rehabilitative and similar achievements that have occurred either following the commission of the crime or a period of incarceration following conviction for the crime. See,~, People v. Williams, 239 A.D.2d 269, 270 (1st Dept. 1997) (vacating persistent felony-offender sentence, citing defendant's "substantial efforts at rehabilitation since her original sentencing"); People v. Chen, 176 A.D.2d 628, 628 (1st Dept. 1991) (reducing sentence based on defendant's in-prison academic success and "significant progress in his rehabilitation from alcohol and substance abuse"); People v. Chambers, 123 A.D.2d 270, 270-71 (1st Dept. 1986) (defendant's educational achievements during pre-conviction incarceration merited reduced sentence); People v. Hiemel, 49 A.D.2d 769, 770 (2d Dept. 1975) (on resentencing appeal, reducing sentence based on defendant's in- prison educational achievements). These decisions reflect recognition of the inherent value of an inmate's positive institutional behavior. "It is a fitting goal to other inmates similarly incarcerated." Hiemel, 49 A.D.2d at 770. It is not easily achieved. As one seasoned judge has observed, "prison can be a dangerous environment and [merely] staying out of trouble while incarcerated may be 44 exceptionally difficult." People v. Brown, 26 Misc. 3d 1204(A), *8 (Sup. Ct., N.Y. Co., 2010), affd 84 A.D.3d 586 (1st Dept. 2011). Besides benefitting the prisoner, self-improving conduct benefits prison management as well. It deserves reward. But regarding appellant, the court did not, in any case, merely "remark on such progress," as the Appellate Division would blandly put it (A 4). Rather, though appellant's markedly improved behavior went wholly unchallenged by the prosecution, the court greeted it with nothing but cynicism-presuming, based on no evidence whatsoever, that he had engaged in his myriad rehabilitative activities solely on the off-chance that he might get resentenced one day. As the court itself summarized its views, it had said "now several times in several ways, four to five years of good conduct in anticipation of a parole review and appeal process is not sufficient to lessen the appropriateness of the [originally imposed] sentence" (A 154). "[A] court's discretion in sentencing is not without limits." People v. Naranjo, 89 N.Y.2d 1047, 1049 (1997). By erroneously declaring appellant's rehabilitative endeavors legally irrelevant and baselessly demeaning them in any event, the court abused its discretion as a matter of 45 law. Cf. People v. Cronin, 60 N.Y.2d 430, 433 (1983) (court committed legal error where it "failed to exercise its discretion because it erroneously perceived that it had no discretion to exercise"). It also rendered an unreliable and unnecessarily vindictive sentence, in violation of appellant's federal and state due-process rights and protection against cruel and unusual punishment. Cf. Naranjo, 89 N.Y.2d at 1049 ("Generally, as a matter of due process, an offender may not be sentenced on the basis of materially untrue assumptions or misinformation.") (internal quotation marks and citations omitted). This Court possesses a remedial choice. See People v. LaSalle, 95 N.Y.2d 827, 829 (2000); C.P.L. §§ 470.40(1); 470.20. It may remand this case to the Appellate Division, or to the trial court - before a different judge - for resentencing. Cf.,~' People v. Schrader, 23 A.D.3d 585, 585-86 (2d Dept. 2005) (resentencing by a different judge required where original sentencer improperly considered acquitted conduct). Or, in the interest of judicial economy, it may itself consider appellant's noteworthy achievements and impose a lawful sentence. That sentence in the aggregate, appellant submits, should not exceed 25 years. 46 CONCLUSION THE ORDER OF THE APPELLATE DIVISION SHOULD BE REVERSED AND THIS COURT MAY ITSELF MAY ITSELF RESTORE APPELLANT'S PREVIOUSLY IMPOSED CONCURRENT SENTENCES OR FURTHER REDUCE THEM OR MAY REMIT TO THE APPELLATE DIVISION OR THE TRIAL COURT6 FOR SUCH CORRECTIVE ACTION. kfc11/r-Z Susan H. Salomon Of Counsel June 2, 2014 Respectfully submitted, ROBERT S. DEAN Attorney for Defendant-Appellant 6 A different trial court if reversal is based on Point III. 47
