People v Murray

People v Murray 2007 NY Slip Op 01217 [37 AD3d 247] February 13, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

The People of the State of New York, Respondent,
v
Damon Murray, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Steven R. Berko of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Dana Levin of counsel), for respondent.

Order, Supreme Court, Bronx County (Peter J. Benitez, J.), entered October 20, 2004, which denied defendant's CPL 440.20 motion to set aside his sentence, unanimously affirmed.

The procedure by which the sentencing court determined that defendant was eligible for consecutive sentences did not violate the principles of Apprendi v New Jersey (530 US 466 [2000]). In imposing consecutive sentences for defendant's convictions of robbery in the first degree and assault in the first degree and a concurrent sentence on the conviction of criminal possession of a weapon in the second degree, the court did not engage in any fact-finding, but instead made a legal determination based on facts already found by the jury (see People v Lloyd, 23 AD3d 296 [2005], lv denied 6 NY3d 755 [2005]; United States v White, 240 F3d 127 [2d Cir 2001], cert denied 540 US 857 [2003]; cf. People v Parks, 95 NY2d 811 [2000]). Concur—Tom, J.P., Sullivan, Nardelli, Gonzalez and Malone, JJ.