People v. Henry, 108333
| Decision Date | 15 November 2018 |
| Docket Number | 108333 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Anthony HENRY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
166 A.D.3d 1213
86 N.Y.S.3d 683
The PEOPLE of the State of New York, Respondent,
v.
Anthony HENRY, Appellant.
108333
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: October 19, 2018
Decided and Entered: November 15, 2018
Christopher Hammond, Cooperstown, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Sophie J. Marmor of counsel), for respondent.
Before: Lynch, J.P., Clark, Mulvey, Rumsey and Pritzker, JJ.
MEMORANDUM AND ORDER
Pritzker, J.
In 2001, defendant was convicted of murder in the second degree and assault in the first degree and was sentenced to a prison term of 25 years to life on the murder conviction and 15 years on the assault conviction ( People v. Henry, 306 A.D.2d 539, 761 N.Y.S.2d 853 [2003], lv denied 100 N.Y.2d 621, 767 N.Y.S.2d 404, 799 N.E.2d 627 [2003] ). The certificate of conviction is silent as to whether the sentences were to run concurrently or consecutively; defendant insists that the sentences were to run concurrently but acknowledges that they are being served consecutively. For reasons not apparent from the face of the record, defendant was resentenced upon the foregoing convictions
to the same terms of imprisonment in 2012.
Thereafter, in 2015, defendant was indicted and charged with one count of promoting prison contraband in the first degree. Defendant agreed to plead guilty to attempted promoting prison contraband in the first degree in exchange for a prison term of 1½ to 3 years – said sentence to be served consecutively to the prison term he already was serving. After defendant pleaded guilty and the matter was adjourned for sentencing, defendant raised an issue as to the constitutionality of his prior convictions – arguing that his murder conviction was unconstitutional because he had been convicted under the wrong subdivision of Penal Law § 125.25 and, further, that the sentence imposed upon his assault conviction was illegal because it arose out of the same criminal transaction as the murder conviction; therefore, defendant's argument continued, the sentences imposed thereon should have run concurrently with one another. Following numerous adjournments to permit defense counsel to develop this issue, County Court denied defendant's challenge to his predicate felon status without a hearing and thereafter sentenced him as a second felony offender to...
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...107 [2014], quoting People v. Konstantinides, 14 N.Y.3d 1, 15, 896 N.Y.S.2d 284, 923 N.E.2d 567 [2009] ; see People v. Henry, 166 A.D.3d 1213, 1215, 86 N.Y.S.3d 683 [2018], lv denied 33 N.Y.3d 949, 100 N.Y.S.3d 205, 123 N.E.3d 864 [2019] ). As to whether the sentence was unduly harsh or sev......
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...22 N.Y.3d 1156 [2014], cert denied 574 U.S. 857 [2014], quoting People v Konstantinides, 14 N.Y.3d 1, 15 [2009]; see People v Henry, 166 A.D.3d 1213, 1215 [2018], lv denied 33 N.Y.3d 949 [2019]). As to whether the sentence was unduly harsh or severe, we note that the 25-year minimum period ......
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