The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner Dencil Lopez, currently an inmate at Sing Sing Correctional Facility, brings this petition for a writ of habeas corpus, alleging that he is being held in state custody in violation of his constitutional rights. See 28 U.S.C. § 2254. Petitioner asserts that consecutive sentences imposed by the New York State courts violated the Double Jeopardy Clause of the Fifth Amendment, and that delay in issuing his indictment violated his right to a speedy trial under the Sixth Amendment. For the following reasons, the petition is denied.
On July 14, 2000, petitioner was convicted in Bronx Supreme Court, after a jury trial, of manslaughter in the first degree (N.Y. Penal Law § 125.20), three counts of robbery in the first degree (N.Y. Penal Law §§ 160.15, , ), criminal use of a firearm in the first degree (N.Y. Penal Law § 265.09), and criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03)-all in connection with a single victim. As a second violent felony offender, petitioner was sentenced to 12 1/2 to 25 years for the manslaughter conviction, to run consecutively to concurrent terms of 12 1/2 to 25 years for the three robbery convictions, 7 1/2 to 15 years for the criminal use of a firearm conviction, and 4 to 8 years for the weapon possession conviction. The sentencing judge explained the rationale of the sentence he imposed:
And after listening to the testimony in this trial, the jurors found you guilty of robbery, and the jury also found you guilty of an independent act, separate and apart from the robberies, an act in which you took a gun and placed it against the head of another person and killed him. . I'm going to have to impose a sentence that is consistent with that verdict and consistent with the findings of this Court.
Sentencing Transcript, Indictment No. 1177/98 at 15 (N.Y. Sup. Ct. Oct. 11, 2000).
On appeal to the Appellate Division, First Department, petitioner argued that his sentence should be modified because it imposed consecutive terms of imprisonment for offenses committed through an act which in itself constituted one of the offenses and also was a material element of another offense. He also argued that his right to a speedy trial was violated. With regard to his sentencing, petitioner relied on New York Penal Law Section 70.25, People v. Laureano, 87 N.Y.2d 640 (1996), and People v. Ramirez, 89 N.Y.2d 444 (1996).*fn1
New York Penal Law Section 70.25 provides:
When more than one sentence of imprisonment is imposed on a person 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, the sentences, except if one or more of such sentences is for a violation of section 270.20 of this chapter, must run concurrently.
Petitioner argued that it was error to impose a consecutive sentence for the manslaughter conviction because the act of causing death, which was a necessary element of the manslaughter charge, was also a material element of one of the counts of robbery in the first degree, that which involved causing "serious physical injury" while committing the robbery or during "immediate flight therefrom." Compare N.Y. Penal Law § 125.20 with N.Y. Penal Law § 160.15.
In a supplemental brief, petitioner further argued that that the three robbery sentences must run concurrently, that the manslaughter sentence must run concurrently with the "causes serious physical injury" robbery sentence, and that therefore, the manslaughter sentence must also run concurrently with the other two robbery sentences. Otherwise, petitioner argued, Section 70.25 would be violated because the three robbery counts would no longer be sentenced to run concurrently. See Darpino Aff., Ex. 3 (defendant's supplemental brief of Dec. 9, 2004).
With regard to petitioner's speedy trial issue, petitioner argued that the prosecution impermissibly delayed petitioner's indictment by sixty months without good cause. In support of this argument, petitioner relied on both the state and federal constitutions.
On February 10, 2005, the Appellate Division modified petitioner's sentence, agreeing with petitioner that his Section 160.15 robbery conviction (robbery that "causes serious physical injury") must run concurrently to his manslaughter sentence. People v. Lopez, 15 A.D.3d 232 (N.Y. App. Div., 1st Dep't 2005). The court reasoned that the act of causing "serious physical injury," which was an element of the robbery conviction, was also the act causing death, which constituted the offense of manslaughter. Id. The Appellate Division rejected petitioner's supplemental argument, however, holding that the sentences for the other two robbery convictions need not run concurrently with the manslaughter sentence. See id. (citing People v. Tanner, 30 N.Y.2d 102, 108 (1972)). By affirming consecutive punishment, the court regarded the elements of robbery while armed with a deadly weapon, and robbery while displaying what appears to be a firearm, as different from the elements of manslaughter, and held accordingly. Compare N.Y. Penal Law § 160.15,  with N.Y. Penal Law § 125.20. The court did not discuss whether its modification of sentence resulted in consecutive, rather than concurrent, treatment of petitioner's three robbery convictions.
As to petitioner's speedy trial argument, the Appellate Division agreed with the prosecution and held that the delay in indicting was caused by the need to gather evidence and that there was no factual issue that warranted a hearing because the petitioner had not made a ...