People v. Garcia , 599 N.Y.S.2d 922 ( 1993 )

Judgment, Supreme Court, New York County (Shirley Levittan, J.), rendered April 12, 1990, convicting the defendant, upon his pleas of guilty, of six counts of robbery in the first degree, attempted robbery in the first degree, robbery in the third degree and attempted robbery in the third degree and sentencing him to nine concurrent indeterminate terms of imprisonment of from 2 to 6 years, modified, on the law, to vacate the sentences imposed on the defendant’s conviction of robbery in the third degree and attempted robbery in the third degree and to substitute therefor concurrent indeterminate terms of imprisonment of from IV2 to 4 Vi years and 1 to 3 years, respectively, and the judgment is otherwise affirmed.

After the defendant pleaded guilty to six counts of robbery in the first degree and one count each of attempted robbery in the first degree, robbery in the third degree and attempted robbery in the third degree, the prosecutor sought consecutive sentences for the first degree robberies the defendant committed while on bail. Over the People’s objection, the court, finding mitigating circumstances, sentenced the defendant to concurrent indeterminate terms of imprisonment of from 2 to 6 years on each of the nine counts.

Penal Law § 70.25 (2-b) requires the imposition of consecutive sentences for violent felonies committed by a defendant on bail unless the court, in the interest of justice, finds mitigating circumstances that "bear directly upon the manner in which the crime was committed.” Although the statute requires the court to place such mitigating circumstances on the record, the sentencing decision is otherwise left to the court’s discretion (People v Farrar, 52 NY2d 302; People v Doleo, 110 AD2d 524, lv denied 65 NY2d 979).

In sentencing the defendant to concurrent terms of imprisonment, the Supreme Court cited his youth, his minor prior criminal history, that no one was injured during the commission of the crimes, the defendant’s drug problem and, most significantly, that no gun was ever displayed, as factors constituting mitigating circumstances.

The People maintain that the factors cited do not constitute "mitigating circumstances that bear directly upon the manner in which the crime was committed.” In support of their contention, the People rely on this Court’s decision in People v Smith (182 AD2d 393, lv denied 79 NY2d 1054), where the sentencing court’s finding that the defendant’s crack addiction, lack of a prior criminal record and failure to inflict injury during the commission of the crimes constituted mitigating circumstances for purposes of Penal Law § 70.25 (2-b) was rejected.

To be contrasted with the Smith decision, however, is this Court’s decision in People v Santiago (181 AD2d 460, affd 80 NY2d 916), where it was held that "[a]bsent any error of law, the People have no right to appeal and this court may not interfere with the court’s decision to impose concurrent terms (People v Matthews, 176 AD2d 627; see also, People v Washington, 175 AD2d 732, lv denied 78 NY2d 1082).” In Santiago, the defendant’s youth, substance abuse and the fact that no victim was injured were found to bear directly on the manner in which the crimes were committed.

The Santiago Court adopted the proper interpretation of Penal Law § 70.25 (2-b). By setting forth its findings as to mitigating circumstances, the sentencing court complied with the requirements of the statute. In the absence of any error of law, this Court should not interfere with its discretion to impose concurrent terms (People v Santiago, supra). "Sentencing courts, in the exercise of their unique judicial function in criminal proceedings, are wisely allocated wide latitude as they are recognized to be in a superior position to dispense proportionate and fair punishment (People v Farrar, 52 NY2d 302, 305-306).” (People v Day, 73 NY2d 208, 212.)

The challenge to the factors relied on by the sentencing court in finding mitigating circumstances must fail, as, contrary to the view expressed in Smith, "[t]he nature of the perpetrator and the absence of injury both bear directly on the manner in which the crimes were committed” (People v Santiago, supra, at 460). The circumstances intended by the Legislature to be mitigating "include facts which would tend to diminish the defendant’s culpability and alleviate his guilt” (People v O’Neill, 86 AD2d 213, 215). The factors cited by the sentencing court herein, that no one was injured and that the defendant’s actions were precipitated by his drug use, bear upon the manner in which the crimes were committed. The sentencing court in this case went further, however, when it stated that "a gun was never displayed”. This finding by the court is borne out by the probation report, in which it is revealed that the victims in two of the cases said that the defendant had his hand in his waistband, in one of the cases the victim said the defendant’s hand was in his pocket, and in one of the cases the victim stated that the defendant said he had a knife. None of them saw any weapon, a point not contested by the District Attorney. This case is to be distinguished from People v O’Neill (supra). In that case a handgun was not only displayed, but placed against the victim’s body. It was later found to be a starter pistol, not capable of discharging a bullet. As noted, in the instant case, there was no proof of any weapon at all, but only a hand in a waistband or pocket.

The factors set forth and relied upon by the sentencing court satisfy the intent of the Legislature. In reaching our conclusion, we make no finding that the sentence imposed by the trial court, to the extent it is affirmed, was necessarily one we would have chosen. We find only that the decision to impose concurrent sentences did not, in the circumstances, violate Penal Law § 70.25 (2-b).

We modify the sentence imposed, however, to comply with the Penal Law and the promise made to the defendant at the plea proceeding. Although the court announced its intention to impose concurrent terms of imprisonment of from IV2 to 4 Vi years on the robbery in the third degree count and of from 1 to 3 years on the attempted robbery in the third degree count, at sentencing, it erroneously imposed concurrent 2 to 6 year sentences "on each case.” The 2 to 6 year sentence for the attempted robbery in the third degree conviction was above the statutory maximum (see, Penal Law §§ 160.05, 110.05 [6]; § 70.00 [2] [e]), and both sentences violated the defendant’s plea bargain. Accordingly, the sentence should be modified to comply with the Penal Law and the plea agreement. Concur—Murphy, P. J., Carro and Rosenberger, JJ.