People v. Mannino

• Decision Date: 29 November 2011
• Citation: 2011 N.Y. Slip Op. 08776,933 N.Y.S.2d 412,89 A.D.3d 1105
• Parties: The PEOPLE, etc., respondent, v. Mario MANNINO, appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08776

89 A.D.3d 1105

933 N.Y.S.2d 412

The PEOPLE, etc., respondent,

v.Mario MANNINO, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 29, 2011.

Lynn W.L. Fahey, New York, N.Y. (Sarah J. Berger of counsel), for appellant, and appellant pro se.

Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.

A. GAIL PRUDENTI, P.J., RANDALL T. ENG, ARIEL E. BELEN, and SANDRA L. SGROI, JJ.

Appeal by the defendant, by permission, from an order of the Supreme Court, Richmond County (Rooney, J.), dated February 26, 2009, which denied, without a hearing, his motion pursuant to CPL 440.20 to set aside so much of his sentence as imposed consecutive terms of imprisonment for his convictions of murder in the second degree, robbery in the first degree, and arson in the third degree.

ORDERED that the order is affirmed.

The Supreme Court properly denied the defendant's motion pursuant to CPL 440.20 to set aside so much of his sentence as imposed consecutive terms of imprisonment for his convictions of murder in the second degree ( see Penal Law § 125.25[3] ), robbery in the first degree ( see Penal Law § 160.15[3] ), and arson in the third degree ( see Penal Law § 150.10[1] ). The challenged consecutive sentences were imposed pursuant to the statutory sentencing scheme that requires concurrent sentences to be imposed “[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other” (Penal Law § 70.25[2] ), but allows for judicial discretion to impose consecutive sentences “when separate offenses are committed through separate acts, [al]though they are part of a single transaction” ( People v. Brown, 80 N.Y.2d 361, 364, 590 N.Y.S.2d 422, 604 N.E.2d 1353; see People v. Battles, 16 N.Y.3d 54, 58–59, 917 N.Y.S.2d 601, 942 N.E.2d 1026, cert. denied ––– U.S. ––––, 132 S.Ct. 123, ––– L.Ed.2d ––––; People v. Ramirez, 89 N.Y.2d 444, 451, 654 N.Y.S.2d 998, 677 N.E.2d 722; People v. Brathwaite, 63 N.Y.2d 839, 842–843, 482 N.Y.S.2d 253, 472 N.E.2d 29). The defendant contends that this sentencing scheme was rendered unconstitutional by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 and its progeny ( see e.g. Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403; Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856). The Supreme Court summarily denied the defendant's motion. The defendant, by permission, appeals. We affirm.

The defendant's contention that the procedure by which the Supreme Court determined that he was eligible for consecutive sentences violated the principles of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 is without merit ( see Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517; People v. Cruz, 46 A.D.3d 567, 846 N.Y.S.2d 376; People v. Bryant, 39 A.D.3d 768, 834 N.Y.S.2d 305; People v. Pritchett, 29 A.D.3d 828, 814 N.Y.S.2d 281). Further, the Supreme Court properly imposed consecutive terms of imprisonment on one count of the defendant's felony murder conviction, and his robbery and arson convictions, since the offenses were separate and distinct acts, notwithstanding that they arose out of a single transaction ( see People v. Battles, 16 N.Y.3d at 58–59, 917 N.Y.S.2d 601, 942 N.E.2d 1026; People v. Frazier, 16 N.Y.3d 36, 41, 916 N.Y.S.2d 574, 941 N.E.2d 1151; People v. Taveras, 12 N.Y.3d 21, 26–27, 878 N.Y.S.2d 642, 906 N.E.2d 370; People v. Yong Yun Lee, 92 N.Y.2d 987, 989, 684 N.Y.S.2d 161, 706 N.E.2d 1185; People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212; People v. Brown, 80 N.Y.2d at 364, 590 N.Y.S.2d 422, 604 N.E.2d 1353; People v. Marte, 52 A.D.3d 737, 737–738, 860 N.Y.S.2d 191, affd. 12 N.Y.3d 583, 884 N.Y.S.2d 205, 912 N.E.2d 37, cert. denied ––– U.S. ––––, 130 S.Ct. 1501, 176 L.Ed.2d 117; People v. Azaz, 41 A.D.3d 610, 611, 837 N.Y.S.2d 339, affd. 10 N.Y.3d 873, 860 N.Y.S.2d 768, 890 N.E.2d 883; People v. Pritchett, 29 A.D.3d 828, 814 N.Y.S.2d 281; People v. Lloyd, 23 A.D.3d 296, 297–298, 805 N.Y.S.2d 20; cf. Penal Law § 70.25[2] ). Contrary to the defendant's contention, the Supreme Court did not engage in any fact-finding, but instead, implicitly made...