People v Morten

People v Morten 2009 NY Slip Op 09402 [68 AD3d 581] December 17, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

The People of the State of New York, Respondent,
v
Tony Morten, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Carol A. Zeldin of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Brian J. Reimels of counsel), for respondent.

Judgments, Supreme Court, Bronx County (Stephen L. Barrett, J.), rendered September 3, 2008, convicting defendant, upon his pleas of guilty, of robbery in the first degree, criminal possession of a weapon in the third degree, and bail jumping in the second degree, and sentencing him to concurrent terms of 12 years for the robbery conviction and seven years for the weapon conviction, consecutive to a term of 1½ to 3 years for the bail jumping conviction, unanimously modified, on the law, to the extent of remanding for resentencing, and otherwise affirmed.

The record establishes that the court and counsel were under the misapprehension that the court was required to impose a sentence for the bail jumping conviction that was consecutive to the sentences for both the weapon possession and robbery convictions. However, Penal Law § 70.25 (2-c) provides that consecutive sentences are mandated (absent a mitigation finding) only when the bail jumping charge relates to the crime for which the defendant jumped bail, and when the terms for both crimes are indeterminate. Here, the bail jumping sentence was not required to be consecutive on the robbery sentence for two reasons: first, defendant jumped bail only on the weapon charge, not the robbery charge, and second, the sentence for the robbery was not indeterminate, but was a determinate 12-year sentence. Since the court may not have [*2]apprehended the extent of its discretion, defendant is entitled to resentencing (see People v Farrar, 52 NY2d 302, 307 [1981]). Concur—Tom, J.P., Andrias, Saxe, McGuire and Manzanet-Daniels, JJ.