People v. Javier

222 A.D.3d 532, 199 N.Y.S.3d 500, 2023 NY Slip Op 06487

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 19, 2023
• Docket: Ind. No. 1348/06 Appeal No. 1271 Case No. 2019-05084
• Status: Published

Opinion

People v Javier (2023 NY Slip Op 06487)

People v Javier

2023 NY Slip Op 06487

Decided on December 19, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 19, 2023
Before: Singh, J.P., Friedman, Gesmer, Shulman, O'Neill Levy, JJ.

Ind. No. 1348/06 Appeal No. 1271 Case No. 2019-05084

[*1]The People of the State of New York, Respondent,

v

Albert Javier, Defendant-Appellant.

Twyla Carter, The Legal Aid Society, New York (Svetlana M. Kornfeind of counsel), for appellant.

Alvin L. Bragg, Jr., District Attorney, New York (Jennifer Covais of counsel), for respondent.

Judgment of resentence, Supreme Court, New York County (Abraham Clott, J.), rendered September 5, 2019, resentencing defendant to an aggregate term of 30 years, unanimously modified, on the law, to the extent of directing that the sentence imposed on count 25 of the indictment run consecutively to the sentence imposed on count 24 and the sentence imposed on count 24 run concurrently with the sentences imposed on the remaining counts, and otherwise affirmed.

We previously directed further resentencing (168 AD3d 644 [1st Dept 2019], lv dismissed 33 NY3d 977 [2019]; 128 AD3d 494 [1st Dept 2015], lv denied 26 NY3d 968 [2015]) on the ground that defendant's 2011 Drug Law Reform Act resentencing was improper with regard to concurrent and consecutive sentences (see People v Norris, 20 NY3d 1068 [2013]). The resentence imposed on the most recent remand is still defective under Norris as to counts 24 and 25 of the indictment. We modify the resentence to the extent indicated to resolve the defect (see People v LaSalle, 95 NY2d 827, 829 [2000]). Because we remanded the matter only for a correction of the Norris error, defendant was not entitled to a plenary resentencing, and the resentencing court properly declined to consider the mitigation evidence defendant submitted in support of a lower aggregate sentence.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: December 19, 2023