People v Frazier, Charles

Motion No: M-751

Slip Opinion No: 2009 NY Slip Op 76284(U)

Decided on June 25, 2009

Appellate Division, First Department, Motion Decision

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

This motion is uncorrected and is not subject to publication in the Official Reports.

June 25, 2009

People v Frazier, Charles

Defendant's extensive criminal record militates against an unnecessary reduction in his sentence.

I would grant reargument, and, upon reargument, remand the matter for resentencing. It is evident that the intent of the trial court was, inter alia, to impose a maximum aggregate sentence of 20 years. I agree that the burglary and larceny conviction at each location should have been run concurrently. If, however, the court had imposed the sentence for the crimes committed at each of the locations to run consecutively, there would not be any violation of the restrictions of Penal Law Section 70.25, and the maximum sentence of 20 years could have been imposed. Concededly, the issue is raised on a motion for reargument. Nevertheless, the issue is one of law that appears on the record and could not have been avoided if raised at the proper juncture (on the appeal itself), the record is sufficient for its resolution, and the issue is determinative. I thus submit that the argument is not waived (see Baker v Bronx Lebanon Hosp. Ctr., 53 AD3d 21, 27 [2008]). Indeed, we could have raised the issue sua sponte on the original hearing of the appeal.

Before: Andrias, J.P., Nardelli, Moskowitz, Renwick, Freedman, JJ.

Motion No. M-751