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People v. Hawkins

State of New York Supreme Court, Appellate Division Third Judicial Department


April 8, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ANDREW HAWKINS, APPELLANT.

The opinion of the court was delivered by: Cardona, P.J.

MEMORANDUM AND ORDER

Calendar Date: February 9, 2010

Before: Cardona, P.J., Peters, Kavanagh, McCarthy and Egan Jr., JJ.

Appeal, by permission, from an order of the County Court of Sullivan County (LaBuda, J.), entered March 20, 2009, which denied defendant's motion pursuant to CPL 440.20 to set aside the sentence following his conviction of the crimes of criminal possession of a weapon in the third degree, criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree and unlawful possession of marihuana, without a hearing.

In affirming defendant's conviction on direct appeal, one of the issues this Court found to be unpersuasive was his contention that the imposition of consecutive sentences was harsh and excessive (45 AD3d 989 [2007], lv denied 9 NY3d 1034 [2008]).

Defendant now appeals, by permission of this Court, from County Court's denial of his CPL 440.20 motion wherein he argued that the imposition of consecutive sentences on two of the counts -- third degree criminal possession of a weapon and fourth degree criminal possession of a controlled substance -- was illegal under Penal Law § 70.25 (2).

Inasmuch as a claim that a sentence is harsh and excessive is distinct from a challenge to the legality of a sentence (see generally People v Seaberg, 74 NY2d 1, 9 [1989]; People v Allen, 82 NY2d 761, 763 [1993]; People v Espino, 279 AD2d 798, 799 [2001]), we agree with defendant that County Court incorrectly denied his motion on the ground that the issue of illegal sentence was previously raised on defendant's direct appeal. Nonetheless, upon reviewing the merits of that claim in the interest of judicial economy, we find it unpersuasive. Contrary to defendant's argument, consecutive sentences on the "weapon possession and drug possession charges were legal, as those are separate and distinct possessory offenses regardless of defendant's possession of both drugs and a weapon at the same time" (People v Smith, 309 AD2d 1081, 1083 [2003]; see People v Almeida, 39 NY2d 823, 824 [1976]).

Defendant's remaining contentions have been examined and found to be without merit.

Peters, Kavanagh, McCarthy and Egan Jr., JJ., concur.

ORDERED that the order of affirmed.

20100408

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