People v. Pena

• Decision Date: 14 February 2017
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael PENA, Appellant.
• Court: New York Court of Appeals Court of Appeals

28 N.Y.3d 727
71 N.E.3d 930
49 N.Y.S.3d 342

The PEOPLE of the State of New York, Respondent,
v.
Michael PENA, Appellant.

Court of Appeals of New York.

Feb. 14, 2017.

49 N.Y.S.3d 342

Ephraim Savitt, New York City, for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (Joshua L. Haber and Susan Gliner of counsel), for respondent.

71 N.E.3d 930

OPINION OF THE COURT

ABDUS–SALAAM, J.

28 N.Y.3d 729

In August 2011, defendant, an off-duty New York City police officer, raped, sodomized and sexually assaulted a 25–year–old school teacher in a residential courtyard, while threatening her with his loaded, police-issued weapon. Defendant was convicted, upon a jury verdict, of three counts of predatory sexual assault and three counts of criminal sexual act in the first degree. He was sentenced to a term of 25 years in prison followed by 20 years of postrelease supervision on each of the three counts of criminal sexual act and 25 years to life on each corresponding count of predatory sexual assault. The sentence imposed for each of the three criminal sexual acts was run concurrently to the sentence for the corresponding predatory sexual assault, and the three "pairs" of sentences were run consecutively to each other, yielding an aggregate term of 75 years to life.¹

The Appellate Division affirmed the judgment (

71 N.E.3d 931

49 N.Y.S.3d 343

126 A.D.3d 618, 3 N.Y.S.3d 604 [1st Dept.2015] ), concluding that the sentencing court lawfully imposed consecutive sentences for defendant's three predatory sexual assault convictions. The Appellate Division determined that although defendant's convictions on three counts of predatory sexual assault involved a single transaction and shared the dangerous instrument element, consecutive sentences were permissible because the three criminal sexual acts were separate and distinct. Furthermore, as relevant to this appeal, the Court held, citing People v. Ingram , 67 N.Y.2d 897, 899, 501 N.Y.S.2d 804, 492 N.E.2d 1220 (1986), that defendant failed to preserve his claim that his aggregate sentence was unconstitutionally excessive under the Eighth Amendment of the United States Constitution. The Court declined to review the constitutional claim in the interest of justice and perceived no basis for reducing the sentence in the interest of justice.

Here, defendant renews his argument that his aggregate sentence violates the Eighth Amendment of the United States Constitution. Additionally, for the first time in any court, he contends that his sentence violates article I, § 5 of the New York Constitution.

28 N.Y.3d 730

Defendant failed to preserve for review his claim that the sentence imposed by the court was...