Opinion
2013-11-8
The PEOPLE of the State of New York, Respondent, v. Frank J. POVOSKI, Jr., Defendant-appellant.
Leanne Lapp, Public Defender, Canandaigua (Martin P. McCarthy, II, of Counsel), for Defendant–Appellant. Frank J. Povoski, Jr., Defendant–Appellant pro se.
Leanne Lapp, Public Defender, Canandaigua (Martin P. McCarthy, II, of Counsel), for Defendant–Appellant. Frank J. Povoski, Jr., Defendant–Appellant pro se.
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from an order denying his motion pursuant to CPL 440.20 seeking to set aside the sentence imposed with respect to his conviction of robbery in the second degree (Penal Law § 160.10[2][a] ), forgery in the second degree (§ 170.10[1] ), and assault in the second degree (§ 120.05[6] ). County Court directed that the sentence on the robbery count shall run consecutively to the sentence imposed on the forgery count, and that those sentences shall run concurrently with the sentence imposed on the assault count.
We note at the outset that the court erred in denying the motion on the ground that defendant could have raised this issue on his direct appeal. Mandatory denial of a motion pursuant to CPL 440.20 is required only when the issue “was previously determined on the merits upon an appeal from the judgment or sentence” (CPL 440.20[2] ), which in this case it was not ( People v. Povoski, 55 A.D.3d 1221, 1221–1222, 864 N.Y.S.2d 586,lv. denied11 N.Y.3d 929, 874 N.Y.S.2d 14, 902 N.E.2d 448). The court erred in conflating the provisions of CPL 440.10 with those of CPL 440.20. The procedural bar set forth in CPL 440.10(2)(c) “applies only to motions made pursuant to section 440.10, and it is undisputed that the instant motion was made pursuant to section 440.20” ( People v. McCants, 15 A.D.3d 892, 893, 788 N.Y.S.2d 892).
We agree with defendant that the consecutive sentences for the robbery and forgery counts are illegal under the facts of this case. The indictment and charge to the jury set forth that either count could serve as the predicate for the count of felony assault, and thus the predicate counts must run concurrently with the count of felony assault ( see People v. Parks, 95 N.Y.2d 811, 814–815, 712 N.Y.S.2d 429, 734 N.E.2d 741;People v. Davis, 68 A.D.3d 1653, 1655, 893 N.Y.S.2d 411,lv. denied14 N.Y.3d 839, 901 N.Y.S.2d 146, 927 N.E.2d 567;People v. Ahedo, 229 A.D.2d 588, 589–590, 646 N.Y.S.2d 520,lv. denied88 N.Y.2d 964, 647 N.Y.S.2d 718, 670 N.E.2d 1350). The sentences imposed on the counts of robbery and forgery must therefore also run concurrently ( see People v. Dickens, 269 A.D.2d 463, 464, 702 N.Y.S.2d 925,lv. denied95 N.Y.2d 852, 714 N.Y.S.2d 3, 736 N.E.2d 864;see also Parks, 95 N.Y.2d at 814–815, 712 N.Y.S.2d 429, 734 N.E.2d 741). We therefore modify the order by granting the motion in part and directing all sentences to run concurrently ( see People v. Lemon, 38 A.D.3d 1298, 1299, 832 N.Y.S.2d 718,lv. denied9 N.Y.3d 846, 840 N.Y.S.2d 773, 872 N.E.2d 886,reconsideration denied9 N.Y.3d 962, 848 N.Y.S.2d 31, 878 N.E.2d 615;People v. Parton, 26 A.D.3d 868, 870, 808 N.Y.S.2d 531,lv. denied7 N.Y.3d 760, 819 N.Y.S.2d 886, 853 N.E.2d 257;see generally People v. LaSalle, 95 N.Y.2d 827, 829, 712 N.Y.S.2d 437, 734 N.E.2d 749).
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion in part and directing that all sentences shall run concurrently and as modified the order is affirmed.