People v. Losicco

Jeanine Ferris Pirro, District Attorney of Westchester County, White Plains (Joseph M. Latino of counsel), for plaintiff. Bennet M. Goodman, Bronxville, for defendant.

OPINION OF THE COURT

MARY H. SMITH, J. In accordance with a decision and order of this court (issued on May 26, 1998) which set aside a sentence that had been previously imposed upon a judgment of conviction, this court resentenced the defendant on February 9, 1999. The People have now moved this court to have that new sentence set aside.

PROCEDURAL HISTORY

After a bench trial in 1981, the defendant was convicted of the following crimes: three counts of murder in the second degree, two counts of robbery in the first degree, three counts of burglary in the first degree, one count of assault in the second degree, one count of grand larceny in the third degree, two counts of criminal possession of a weapon in the fourth degree, one count of petit larceny, and one count of criminal mischief in the fourth degree. The defendant was originally sentenced by the Honorable Angelo Ingrassia, Judge of the County Court (on June 19, 1981), to the following periods of incarceration: 25 years to life on each of 3 counts of murder in the second degree; 81/3 to 25 years on each of 2 counts of robbery in the first degree; 81/3 to 25 years on each of 3 counts of burglary in the first degree; 21/3 to 7 years on the single count of assault in the second degree; 1 to 4 years on the single count of grand larceny in the third degree; 1 year each on the misdemeanor charges of criminal possession of a weapon in the fourth degree (2 counts), petit larceny (1 count), and criminal mischief in the fourth degree (1 count). The original sentencing court stated that all the felonies, with the exception of the assault in the second degree (count 12 of the indictment), would run concurrent with each other. The assault in the second degree was declared by the original sentencing court to be "a consecutive charge, and the Court directs that that sentence run consecutively to the other felony charges upon which this Court has imposed sentence." (See, minutes of original sentencing, at 15.) The misdemeanor counts were, by law, merged with the felonies. Therefore, all charges, with the exception of the assault, were to run concurrently. The court's decision herein is based upon consideration of the papers filed by the parties, a review of this court's decision and order and the papers filed on defendant's motion pursuant to CPL 440.20, a review of this court's decision and order and the papers filed on the People's motion to reargue, and the minutes of the original sentencing court. This opinion will address the question of the propriety of the resentence on count 12 (assault, second) and will not revisit this court's previous decision to vacate the original sentence. With the exception of count 12 (assault, second), the sentence on each remaining count of the indictment was reimposed exactly as pronounced by the original sentencing court. Therefore, any claim against this court's previous decision to vacate the original sentence would be to form only and not as to substance since only the invalid sentence was corrected and all sentences which were proper were reimposed without change, suspension or interruption (People v Demanso, 145 AD2d 907).

ISSUE RAISED IN THE PEOPLE'S MOTION

In the instant motion to set aside the sentence the People contend that "the sole defect, the making of count 12 consecutive to count seven, was not integral to the lawful running of count 12 consecutive to the other counts. Accordingly the Court should not have changed that lawful portion of the sentence." (See, People's Mem of Law in Support of Motion, next to last page.) Basically, the People claim that by resentencing the defendant on count 12 (assault, second) to have that count run concurrently with all other counts, this court's action was unlawful and invalid as a matter of law. In their affirmation in support of the motion, the People state that even though the sentence as between count 12 and count 7 was illegal, the making of count 12 consecutive to the remaining counts was legal and should not have been disturbed. In essence, the People contend that, although the sentence for the conviction on count 12 (assault, second) must run concurrently with the sentence for the conviction on count 7 (burglary, first), the sentence for count 12 (assault, second) could run consecutively with the sentence which was originally given on the murders. If that were so, the defendant's originally calculated aggregate minimum term of imprisonment (271/3 years) would have remained unchanged. The defense, on the other hand, contends that once it was determined that the sentence on count 12 (assault, second) must run concurrent with the sentence on count 7 (burglary, first) then, as a matter of law, the sentence on count 12 (assault, second) must also run concurrent with all other counts, simply because count 7 (burglary, first) was already running concurrent with those other sentences. If that is so, then the original sentence on count 12 (assault, second) was illegal as to its relation to all counts and not just to count 7 (burglary, first) as the People argue. Therefore, the defense maintains that the resentencing of the defendant was legal and proper and, consequently, it should not be set aside.

ANALYSIS OF THE LAW

It is unquestioned that, in accordance with the dictates of People v Laureano (supra), the sentence imposed for count 12 (assault, second) of the indictment must run concurrently with the sentence imposed for count 7 (burglary, first). The People concede that fact by statements in both their motion for reargument and the instant motion to set aside the sentence. In both those documents the People state their position to be that the only modification in the defendant's original sentence should be that count 12 (assault, second) should be ordered to run concurrently with the sentence imposed upon count 7 (burglary, first). A fundamental tenet of American law (and its English source) is the prohibition against double jeopardy. There are three separate protections which are embodied in the doctrine of double jeopardy (North Carolina v Pearce, 395 US 711; United States v Benz, 282 US 304; Ex Parte Lange, 85 US 163; Matter of Auer v Smith, 77 AD2d 172). These protections include: protection against a second prosecution for the same offense after acquittal; protection against a second prosecution after conviction; and protection against being punished more than once for the same offense. The Supreme Court of the United States in Pearce (supra, at 717-718), quoting the landmark case of Ex Parte Lange (supra, at 168-173), stated that the controlling constitutional principle had been announced in that case as: "`If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And * * * there has never been any doubt of [this rule's] entire and complete protection of the party when a second punishment is proposed in the same court on the same facts, for the same statutory offence * * * Therefore, for the reasons stated herein, this court determines that the defendant was properly and legally resentenced by this court and it is the decision of this court that the motion to set aside the sentence is denied.