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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 55
The People &c.,
            Respondent,
        v.
Sergio Rodriguez,
            Appellant.




             Susan H. Salomon, for appellant.
             Eleanor J. Ostrow, for respondent.




STEIN, J.:
             On defendant Sergio Rodriguez's prior appeal, we held
that CPL 470.20 authorized the Appellate Division to remit the
matter to the sentencing court for consideration of whether one
of defendant's robbery sentences should be modified to run
consecutively in light of the appellate court's correction of the

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unlawful imposition of consecutive sentences with respect to his
assault and attempted murder convictions (see People v Rodriguez,
18 NY3d 667, 669-671 [2012]).    Therefore, on this appeal, we are
constrained to hold that the sentencing court acted within its
discretion -- derived from that remittal -- when it modified
defendant's sentence in accordance with the Appellate Division's
directive.    We further conclude that the sentencing court's
imposition of consecutive sentences for defendant's convictions
of first-degree assault and first-degree robbery comports with
Penal Law § 70.25 (2).    We, therefore, affirm.
                                  I.
             One evening in May 2007, defendant and two other men
stopped the victim on a street in Manhattan.    Defendant gestured
with a gun and demanded that the victim hand over a gold chain
that he was wearing around his neck.     As the victim attempted to
comply by lifting the chain, defendant shot him in the knee.
Despite the victim's continued efforts to remove his chain,
defendant shot him twice more -- once in the torso and, as the
victim fell, again in his back.    One of defendant's accomplices
then removed the necklace and the victim's cell phone from his
person.   The victim survived, but sustained life-threatening
injuries requiring extensive rehabilitation and causing lasting
disability.
             Following a jury trial, defendant was convicted of
attempted murder in the second degree (Penal Law §§ 110.00,


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125.25 [1]), assault in the first degree (Penal Law § 120.10
[1]), two counts of robbery in the first degree (Penal Law §
160.15 [1], [4]), and robbery in the second degree (Penal Law §
160.10 [1]).   Commenting on the gratuitously violent nature of
the crime and defendant's prior criminal history, the court
sentenced him, as a second violent felony offender, to
determinate terms of: 25 years on the attempted murder count; 15
years on the first-degree assault count; 25 years for each count
of first-degree robbery; and 15 years for the sole count of
robbery in the second degree.   The sentencing court directed that
the assault sentence run consecutively to the attempted murder
sentence, and that the remaining sentences run concurrently,
resulting in an aggregate term of 40 years' imprisonment,
followed by five years of postrelease supervision.
          Upon defendant's appeal, the People conceded that the
imposition of consecutive sentences for defendant's assault and
attempted murder convictions violated Penal Law § 70.25 (2) (see
People v Laureano, 87 NY2d 640, 643 [1996]).   The Appellate
Division therefore modified the judgment by directing that those
sentences be served concurrently, resulting in an aggregate term
of 25 years in prison (People v Rodriguez, 79 AD3d 644, 644 [1st
Dept 2010], affd 18 NY3s 669 [2012]).   Additionally, the
Appellate Division remanded the matter for resentencing to allow
the court to "restructure the sentences to arrive lawfully at the
aggregate sentence which it clearly intended to impose upon


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                                 - 4 -                        No. 55

defendant" (id. at 645).
             Defendant appealed to this Court, arguing that the
Appellate Division's remittal violated CPL 430.10, which
prohibits a sentencing court from modifying a lawful sentence
once it has commenced.    Defendant also contended that the
remaining counts must run concurrently pursuant to Penal Law §
70.25 (2).    Although we determined that it would be premature, at
that juncture, to address the propriety of running the individual
counts consecutively, this Court held that the Appellate
Division's remittal did not violate CPL 430.10 because the
corrective action taken by the Appellate Division fell within
that court's authority as embodied in CPL 470.20 (see Rodriguez,
18 NY3d at 669-671).    Thus, we affirmed the Appellate Division
order.
             At resentencing, defendant maintained that CPL 430.10
prohibited the court from realigning his sentences and that Penal
Law § 70.25 (2) required the imposition of concurrent sentences
for each count.    Defendant also proffered evidence of his good
behavior and progress while incarcerated in support of his
argument that, even if consecutive sentencing was permissible,
mitigation of his previously-imposed 40-year aggregate term of
imprisonment was appropriate.
             The sentencing court rejected defendant's argument that
CPL 430.10 was a legal impediment to the modification of his
sentences.    Further, although the court acknowledged defendant's


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positive efforts while incarcerated, it concluded that
consecutive sentences were warranted due to the severity of the
victim's injuries and the heinous nature of defendant's crimes.
Thus, the court modified defendant's sentences by running his
sentence for first-degree assault (based on causing serious
physical injury with a deadly weapon) consecutively to his
sentence for first-degree robbery involving the display of a
firearm.   Consequently, after resentencing, the aggregate term of
defendant's sentences was, again, 40 years, plus five years of
postrelease supervision.
             The Appellate Division affirmed (112 AD3d 488 [1st Dept
2013]), and a Judge of this Court granted defendant leave to
appeal (22 NY3d 1202 [2014]).
                                  II.
             Defendant erroneously claims that we limited our prior
decision in this case to the narrow issue of whether the
Appellate Division's remittal was barred by CPL 430.10, thereby
leaving open the question of whether, upon that remittal, CPL
430.10 prohibited the sentencing court from modifying defendant's
sentences.    To the contrary, the clear import of our holding that
CPL 470.20 provided the Appellate Division with the discretion to
direct realignment of defendant's legally imposed sentences was
that, by extension, the sentencing court was authorized to take
such corrective action because it was specifically empowered to




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do so by the Appellate Division (see Rodriguez, 18 NY3d at 670).1
We are bound by that holding (see generally People v Peque, 22
NY3d 168, 194 [2013], cert denied sub nom. Thomas v New York, ___
US ___, 135 S Ct 90 [2014]; People v Taylor, 9 NY3d 129, 148
[2007]).   Accordingly, the sentencing court's realignment of
defendant's sentences did not violate CPL 430.10.
           Defendant also argues that the imposition of
consecutive sentences on his assault and robbery convictions was
unlawful because the crimes were comprised of a single act.
Penal Law § 70.25 (2) mandates that concurrent sentences be
imposed 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."   We have held that, "[t]o determine whether
consecutive sentences are permitted, a court must first look to
the statutory definitions of the crimes at issue" to discern
whether the actus reus elements overlap (People v Battles, 16
NY3d 54, 58 [2010], cert denied ___ US ___, 132 S Ct 123 [2011];

     1
        Indeed, the dissenters to our prior decision also
interpreted our holding as deciding this issue, contending that
the majority opinion erroneously held that CPL 470.20 "supplies
. . . authorization" to trial and sentencing courts for
modification of a sentence that CPL 430.10 does not otherwise
provide (18 NY3d 667, 673 [2012] [Lippman, Ch. J., dissenting]).
Contrary to the dissent's assertion herein, our previous
statement that it was "premature" for us to determine whether any
of the sentences could be run consecutively referred only to
whether the imposition of such sentences would violate Penal Law
§ 70.25 (2), as we expressly stated later in that opinion (18
NY3d at 671-672).

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see People v Frazier, 16 NY3d 36, 40 [2010]; Laureano, 87 NY2d at
643).    Even where the crimes have an actus reus element in
common, "the People may yet establish the legality of consecutive
sentencing by showing that the 'acts or omissions' committed by
defendant were separate and distinct acts" (Laureano, 87 NY2d at
643; see People v McKnight, 16 NY3d 43, 48 [2010]; People v
Ramirez, 89 NY2d 444, 451 [1996]).       Conversely, where "the actus
reus is a single inseparable act that violates more than one
statute, [a] single punishment must be imposed" (Frazier, 16 NY3d
at 41 [internal quotation marks and citations omitted] [emphasis
omitted]).    The People bear the burden of establishing the
legality of consecutive sentencing by "identifying the facts
which support their view" that the crimes were committed by
separate acts (Laureano, 87 NY2d at 644; see McKnight, 16 NY3d at
51).
             Even if, as defendant contends, the statutory elements
of his robbery and assault convictions overlap, the People have
demonstrated in this case that the assault count and the robbery
count at issue were committed by separate and distinct acts.
According to the victim's trial testimony, defendant gestured
with the firearm and demanded that the victim relinquish his
chain.   The victim was acquiescing when, in an action completely
unrelated to any use of force necessary to overcome resistance or
compel compliance in order to effectuate the robbery, defendant
repeatedly shot the victim.


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           Although defendant is indeed correct that the assault
occurred before the robbery was completed, courts retain
discretion to impose consecutive sentences "'when separate
offenses are committed through separate acts, though they are
part of a single transaction'" (People v Azaz, 10 NY3d 873, 875
[2008], quoting People v Brown, 80 NY2d 361, 364 [1992]).     The
robbery was comprised of defendant's acts of motioning with the
firearm and demanding the chain, together with his accomplice's
taking of the victim's property (see Penal Law §§ 160.00, 160.15
[4]).   In contrast, the act of assault occurred when defendant
shot the victim with the requisite intent (see Penal Law § 120.10
[1]).   On this record, the mere fact that the shooting
interrupted, rather than succeeded, the theft does not render
indivisible these separable acts (see Ramirez, 89 NY2d at 454).
That is, because the "entire tenor of the robbery . . . was
distinct from the life-threatening assault[,] . . . the violent
and repeated shooting of [the victim] was a separate and distinct
act" from the forcible theft of his property (id.; see also
People v Tanner, 30 NY2d 102, 108 [1972]).   Moreover, since the
jury need not have concluded under the instructions given that
the assault occurred in furtherance of the robbery, as compared
to merely during the course thereof, we reject defendant's claim
that the robbery and assault were necessarily a single act
because he was also charged with and convicted of robbery under
Penal Law § 160.15 (1) (compare People v Parks, 95 NY2d 811, 815


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[2000]).
           Defendant's remaining contention is unpreserved.
                                ***
           Accordingly, the order of the Appellate Division should
be affirmed.




                               - 9 -
People v Rodriguez (Sergio)
No. 55




LIPPMAN, Chief Judge (dissenting):
          When this case was previously before us, the Court
characterized its own holding as being limited to "the narrow
issue" of whether the Appellate Division was precluded by CPL
430.10 from remitting a matter to Supreme Court for resentencing
in the circumstances presented (see 18 NY3d 667, 671 [2012]).
The Court stated that it would be premature to address whether
Supreme Court, upon remittal, could impose anything other than
concurrent sentences (see 18 NY3d at 670).   What the opinion did
not rule upon explicitly is whether Supreme Court had the
authority to reconfigure defendant's sentence.
          Perhaps because that authorization was not granted, the
majority determines that the "clear import" of the prior holding
was that Supreme Court had such authority by virtue of the
Appellate Division's remittal under CPL 470.20.   But the Court
left for another day -- today, after Supreme Court actually
exercised that power -- the legality of the sentence imposed by
Supreme Court.
          I believe that Supreme Court lacked the authority to
restructure defendant's sentence under CPL 430.10.   The flaw in
defendant's initial sentence was that he was subject to


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consecutive terms of imprisonment for two offenses that had been
committed through the same act (79 AD3d 644, 644-645 [1st Dept
2010]).   When the Appellate Division corrected the illegality by
ordering that those terms be served concurrently, defendant was
subject to a lawful sentence.      At that point, CPL 430.10
precluded Supreme Court -- on remittal or otherwise -- from
further altering the length of any sentence that defendant had
been serving since 2008 (see People v LaSalle, 95 NY2d 827, 829
[2000]; People v Yannicelli, 40 NY2d 598, 602 [1976]).
              Because Supreme Court lacked the authority to
restructure defendant's sentence by running any of these
sentences consecutively to one another, I do not consider whether
consecutive sentences could be lawfully imposed for the
particular sentences at issue here.
*   *     *    *   *   *   *   *    *      *   *   *   *   *   *   *   *
Order affirmed. Opinion by Judge Stein. Judges Read, Pigott,
Rivera and Abdus-Salaam concur. Chief Judge Lippman dissents in
an opinion in which Judge Fahey concurs.

Decided May 7, 2015




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