People v. Mazariego

Appellate Division of the Supreme Court of New York

People v. Mazariego

2016 NY Slip Op 6727, 143 A.D.3d 842, 38 N.Y.S.3d 820

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 12, 2016

Docket2014-10286

StatusPublished

This text of 2016 NY Slip Op 6727 (People v. Mazariego) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Mazariego, 2016 NY Slip Op 6727, 143 A.D.3d 842, 38 N.Y.S.3d 820 (N.Y. Ct. App. 2016).

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Opinion

Appeal by the defendant from a sentence of the County Court, Nassau County (Sullivan, J.), imposed June 26, 2014, upon his conviction of attempted gang assault in the first degree, upon a jury verdict, as reduced by a decision and order of this Court dated May 28, 2014 (see People v Mazariego, 117 AD3d 1082 [2014]).

Ordered that the sentence is affirmed.

Following a jury trial, the defendant was convicted of *843 manslaughter in the first degree, gang assault in the first degree, and attempted assault in the second degree. On a prior appeal, this Court modified the judgment of conviction by reducing the conviction of gang assault in the first degree to attempted gang assault in the first degree, and vacating the sentence imposed upon the conviction of gang assault in the first degree. As so modified, the judgment was affirmed, and the matter was remitted to the County Court, Nassau County, “for sentencing on the conviction of attempted gang assault in the first degree” (People v Mazariego, 117 AD3d 1082, 1082 [2014]).

Upon remittitur, the County Court sentenced the defendant solely on the reduced conviction of attempted gang assault in the first degree, and did not disturb the sentences imposed upon the defendant’s other two convictions.

The defendant’s sole contention on this appeal is that, upon remittitur, the County Court should also have resentenced him on his other two convictions. Contrary to his contention, the County Court properly carried out the directive contained in this Court’s decision and order by sentencing him solely with respect to the reduced conviction of attempted gang assault in the first degree (see CPL 470.15 [2] [a]; 470.20 [4]; cf. People v Villanueva, 136 AD3d 1068 [2016]; People v Calas, 134 AD3d 1043 [2015]). The County Court had no obligation, or authority, to resentence the defendant on the convictions that were affirmed by this Court’s decision and order (see CPL 470.15 [2] [a]; 470.20 [4]; cf. People v Illescas, 139 AD3d 873 [2016]).

Eng, P.J., Leventhal, Maltese and Connolly, JJ., concur.

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Appeal by the defendant from a sentence of the County Court, Nassau County (Sullivan, J.), imposed June 26, 2014, upon his conviction of attempted gang assault in the first degree, upon a jury verdict, as reduced by a decision and order of this Court dated May 28, 2014 (see People v Mazariego, 117 AD3d 1082 [2014]).

Ordered that the sentence is affirmed.

Following a jury trial, the defendant was convicted of *843 manslaughter in the first degree, gang assault in the first degree, and attempted assault in the second degree. On a prior appeal, this Court modified the judgment of conviction by reducing the conviction of gang assault in the first degree to attempted gang assault in the first degree, and vacating the sentence imposed upon the conviction of gang assault in the first degree. As so modified, the judgment was affirmed, and the matter was remitted to the County Court, Nassau County, “for sentencing on the conviction of attempted gang assault in the first degree” (People v Mazariego, 117 AD3d 1082, 1082 [2014]).

Upon remittitur, the County Court sentenced the defendant solely on the reduced conviction of attempted gang assault in the first degree, and did not disturb the sentences imposed upon the defendant’s other two convictions.

The defendant’s sole contention on this appeal is that, upon remittitur, the County Court should also have resentenced him on his other two convictions. Contrary to his contention, the County Court properly carried out the directive contained in this Court’s decision and order by sentencing him solely with respect to the reduced conviction of attempted gang assault in the first degree (see CPL 470.15 [2] [a]; 470.20 [4]; cf. People v Villanueva, 136 AD3d 1068 [2016]; People v Calas, 134 AD3d 1043 [2015]). The County Court had no obligation, or authority, to resentence the defendant on the convictions that were affirmed by this Court’s decision and order (see CPL 470.15 [2] [a]; 470.20 [4]; cf. People v Illescas, 139 AD3d 873 [2016]).

Eng, P.J., Leventhal, Maltese and Connolly, JJ., concur.

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Bluebook (online)

2016 NY Slip Op 6727, 143 A.D.3d 842, 38 N.Y.S.3d 820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mazariego-nyappdiv-2016.

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