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1
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OPINION
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EXTRACTED KEY WORDS
TRIAL COURT RESPONDENT MEMORANDUM APPELLATE DIVISION CONVICTIONS PROVISION SUBSTITUTING CONCUR CPL CORRECTIVE ACTION REMIT RESENTENCING DISCRETION JUDGE EXERCISING REVERSING MODIFYING LEGAL SENTENCE ILLEGALLY IMPOSED SENTENCE ABUSE CHOOSING LATTER OPTION CHIEF JUDGE KAYE JUDGES BELLACOSA SMITH LEVINE CIPARICK WESLEY ROSENBLATT CONCUR |
2 No. 88
The People &c.,
Appellant,
v.
Andrew LaSalle,
Respondent.
_________________________________________________________________
2000 NY Int. 85
June 29, 2000
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Richard Longworth Hecht, for appellant.
Kevin P. Gilleece, for respondent.
_________________________________________________________________
_________________________________________________________________
MEMORANDUM:
The order of the Appellate Division should be affirmed. In this case,
the Appellate Division ruled that the trial court "erred in imposing
consecutive sentences for the defendant's convictions of sodomy in the
first degree and criminal use of a firearm in the first degree since
both convictions arose out of a single incident" (258 2 668, 669). Its
order modified the judgment by "deleting the provision thereof
imposing consecutive indeterminate terms of imprisonment and
substituting therefor a provision that all of the sentences shall run
concurrently to one another" (id.).
The sole issue raised in the People's appeal is whether, under CPL
470.20, the Appellate Division's only available corrective action on
the illegal sentence was to remit for resentencing by the trial court.
To the contrary, an intermediate appellate court, in exercising its
responsibility under CPL 470.20 to take "such corrective action as is
necessary and appropriate," has the discretion, upon reversing or
modifying a sentence, either to remit to the trial court for
resentencing or to substitute its own legal sentence for the illegally
imposed sentence. The Appellate Division did not abuse its discretion
by choosing the latter option.
Order affirmed, in a memorandum. Chief Judge Kaye and Judges
Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur.
SNIPPETS:
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