PEOPLE v. MURRAY (2007)

Order, Supreme Court, Bronx County (Peter J. Benitez, J.), entered October 20, 2004, which denied defendant's article CPL 440.20 motion to set aside his sentence, unanimously affirmed.

The procedure by which the sentencing court determined that defendant was eligible for consecutive sentences did not violate the principles of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 [2000].   In imposing consecutive sentences for defendant's convictions of robbery in the first degree and assault in the first degree and a concurrent sentence on the conviction of criminal possession of a weapon in the second degree, the court did not engage in any fact-finding, but instead made a legal determination based on facts already found by the jury (see People v. Lloyd, 23 A.D.3d 296, 805 N.Y.S.2d 20 [2005], lv. denied 6 N.Y.3d 755, 810 N.Y.S.2d 423, 843 N.E.2d 1163 [2005];  United States v. White, 240 F.3d 127 [2d Cir.2001], cert. denied 540 U.S. 857, 124 S.Ct. 157, 157 L.Ed.2d 104 [2003];  cf. People v. Parks, 95 N.Y.2d 811, 712 N.Y.S.2d 429, 734 N.E.2d 741 [2000] ).