        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1004
KA 15-00646
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICKY GRACE, DEFENDANT-APPELLANT.


KATHRYN FRIEDMAN, BUFFALO, FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DAVID A.
HERATY OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered November 26, 2014. The judgment convicted
defendant, upon a jury verdict, of attempted murder in the second
degree (three counts), assault in the first degree (three counts),
criminal use of a firearm in the first degree (three counts) and
criminal possession of a weapon in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that all of the sentences
imposed shall run concurrently and as modified the judgment is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of three counts each of attempted murder in the
second degree (Penal Law §§ 110.00, 125.25 [1]), assault in the first
degree (§ 120.10 [1]), and criminal use of a firearm in the first
degree (§ 265.09 [1] [a]), and one count of criminal possession of a
weapon in the second degree (§ 265.03 [1] [b]). Defendant was
sentenced to a determinate term of 10 years of imprisonment for each
count of attempted murder and assault, as well as a determinate term
of five years of imprisonment for each count of criminal use of a
firearm and for the count of criminal possession of a weapon. Supreme
Court directed that the sentences on the three counts of criminal use
of a firearm in the first degree were to run concurrently to each
other and consecutively to all other sentences, which were to run
concurrently to each other.

     We note at the outset that the sentence imposed is illegal and
thus the judgment must be modified accordingly. Although defendant
has not raised this issue, his failure to do so “is of no moment,
inasmuch as we cannot permit an illegal sentence to stand” (People v
Terry, 90 AD3d 1571, 1572). “When more than one sentence of
imprisonment is imposed on a person for two or more offenses committed
                                 -2-                          1004
                                                         KA 15-00646

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, the sentences . . . must run concurrently”
(Penal Law § 70.25 [2]). Here, we conclude that the crime of criminal
use of a firearm in the first degree arose out of the same criminal
transaction as its underlying violent felony, i.e., the crime of
attempted murder in the second degree (see People v Abdullah, 298 AD2d
623, 624). Therefore, we modify the judgment by directing that the
sentences imposed on the three counts of criminal use of a firearm in
the first degree shall run concurrently with all other sentences (see
§ 70.25 [2]; see generally People v Shorter, 6 AD3d 1204, 1205-1206,
lv denied 3 NY3d 648).

     Defendant failed to preserve for our review his contention that
his sentence was a vindictive punishment for proceeding to trial (see
People v Brown, 111 AD3d 1385, 1387, lv denied 22 NY3d 1155). In any
event, that contention has been rendered academic by our decision to
run all sentences concurrently, which was promised as part of the plea
negotiations (see generally People v Eric P., 135 AD3d 882, 883-884).
Defendant further contends that the court improperly refused to accept
his plea when he attempted to plead guilty to the entire indictment.
Subject to exceptions not relevant here (see CPL 220.10 [5]), a
defendant has a statutory right to plead guilty to the entire
indictment (see CPL 220.10 [2]), but reversal is not required where,
as here, the issue is academic (cf. People v Rosebeck, 109 AD2d 915,
916). Here, defendant contends that he was prejudiced by this error
(see e.g. People v Best, 132 AD2d 773, 775-776), due to an allegedly
harsher sentence imposed after trial. In light of our determination
to modify defendant’s sentence to what would have been imposed had he
been allowed to accept the plea agreement, however, we conclude that
the issue of prejudice, if any, flowing from the denial of defendant’s
right to plead guilty to the entire indictment has been rendered
academic (see generally Eric P., 135 AD3d at 883-884). Contrary to
defendant’s further contention, the sentence is not unduly harsh or
severe.

     In light of our determination to modify defendant’s sentence to
that contained in the plea agreement, defendant’s contention that he
was deprived of his right to effective assistance of counsel as a
result of defense counsel’s alleged failure to prepare him adequately
for the plea colloquy has also been rendered academic (see generally
People v Wood, 37 AD3d 283, 284, lv denied 8 NY3d 992).




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
