By Charisma L. Miller, Esq.
Brooklyn Daily Eagle
Requiring a defendant’s robbery sentence to run consecutively was too excessive a punishment the Appellate Division, 2nd Department ruled last month.
A Brooklyn jury convicted Melvin Bunch for the 2009 robbery of men walking home from a summer barbeque. After Bunch was found guilty of robbery in the first and second degrees, the trial judge sentenced him to eight years in prison for the first charge and six years for robbery in the second degree.
Bunch’s appellate attorney, Leila Hull, filed an instant appeal, asserting that the evidence against Bunch was not sufficient to sustain the robbery charges. In particular, Hull challenged witness testimony against Bunch, asserting that due to the poor lighting on street, it would have been impossible for the witnesses to identify Bunch as the robber. Hull also argued that Bunch’s trial attorney was ineffective.
The Appellate Division panel dismissed most portions of Hull’s argument, stating, for instance, that issues of witness testimony were “unpreserved for appellate review” and that its refusal to reach a decision was “in the exercise of our interest of justice jurisdiction.”
Hull also argued that Bunch’s sentence was too excessive for 22-year old who had no prior criminal convictions. Bunch’s eight- and six year prison sentences were scheduled to run consecutively — one after the other — for a total prison term of 14 years.
Generally, robbery in the first degree carries a minimum prison sentence of five years, with robbery in the second degree holding a 3½-year jail time minimum. Seemingly in accordance with New York sentencing guidelines, the trial judge sentenced Bunch to eight years in prison for robbery in the first and six years behind bars for the robbery in the second charge.
Bunch’s attorney asserted that his sentence should run concurrently, meaning that they should run at the same time, with the defendant serving the longer of the two prison terms.
“[I]n considering the sentence, the court should impose the minimum amount of punishment, taking into account the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant,” Hull wrote in the her appellate brief.
In reply, Brooklyn prosecutors argued that Bunch committed “violent robberies” and that the “seriousness of the offenses of which [Bunch] was convicted justified the sentence imposed.”
“[N]o one was harmed,” Hull asserted, given that the supposed flaws in the witness identification evidence support the contention that Bunch’s sentence was excessive, Hull’s argument continued.
The Appellate panel partially agreed. “Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence,” the panel ruled. The evidence against Bunch was “legally sufficient to establish the [his] guilt of both crimes beyond a reasonable doubt,” the panel further wrote.
With regard to the sentence, the panel gave some leeway. Without explanation, the court ruled “The sentence was excessive.”
Presiding Justice Randall Eng and Associate Justices Ruth Balkin, Plummer Lott and Sheri Roman sat on the Appellate Court panel.