The Court of Appeals, in an opinion by Judge Abdus-Salaam, resolving two appeals stemming from the same incident, over a three-judge dissent in the “sentencing” appeal, affirmed the defendant’s conviction, finding that the concurrent/consecutive sentencing rules were properly applied, and the Alford plea was not tainted by erroneous information provided by defense counsel. Defendant, during the course of an armed robbery of several victims in a park, discharged a weapon, grazing one of the victims. Defendant was charged with robbery, attempted robbery and attempted first degree felony murder. The court noted that the Appellate Division here (4th Department) found that consecutive sentences for felony murder and the underlying felony could have been imposed (not the case here). while two other departments have held such sentences must be concurrent. The Court of Appeals did not address that issue because it was raised in a reply brief:
In People v Laureano, we explained that when “determining whether concurrent sentences are required, the sentencing court must first examine the statutory definitions of the crimes for which defendant has been convicted” (87 NY2d at 643). The court must then determine “whether the actus reus element is, by definition, the same for both offenses (under the first prong of the statute), or if the actus reus for one offense is, by definition, a material element of the second offense (under the second prong)” (id.). The court must focus on actus reus rather than mens rea “[b]ecause both prongs of Penal Law § 70.25 (2) refer to the ‘act or omission’ . . . that constitutes the offense” … .
If a defendant’s acts or omissions do not fit under either prong of the statute, “the People have satisfied their obligation of showing that concurrent sentences are not required” … . When there “is some overlap of the elements of multiple statutory offenses,” courts retain discretion to impose consecutive sentences “if the People can demonstrate that the acts or omissions committed by the defendant were separate and distinct acts” … , even “though they are part of a single transaction” … . * * *
We have not directly addressed whether the sentence on a first-degree felony murder charge must run concurrently with the sentence imposed on the underlying felony. At the time of defendant’s sentencing, the 4th Department had yet to address this issue, but the 2nd and 3rd Departments had, holding that a sentence for first-degree felony murder had to run concurrently with the sentence imposed on the underlying felony … . However, when faced with the issue in this case, the 4th Department affirmed the sentencing court’s conclusion that the sentences could run consecutively. Under these circumstances, we cannot say that defense counsel’s advice to defendant, even if erroneous, rendered him ineffective … . People v Couser, 2016 NY Slip Op 07831, CtApp 11-22-16
CRIMINAL LAW (CONSECUTIVE-CONCURRENT SENTENCING RULES EXPLAINED IN SOME DETAIL)/SENTENCING (CONSECUTIVE-CONCURRENT SENTENCING RULES EXPLAINED IN SOME DETAIL)/CONSECUTIVE SENTENCES (CONSECUTIVE-CONCURRENT SENTENCING RULES EXPLAINED IN SOME DETAIL)/CONCURRENT SENTENCES (CONSECUTIVE-CONCURRENT SENTENCING RULES EXPLAINED IN SOME DETAIL)/ATTORNEYS (TELLING DEFENDANT HE COULD RECEIVE CONSECUTIVE SENTENCES FOR ATTEMPTED FELONY MURDER AND THE UNDERLYING FELONY (ROBBERY) DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/FELONY MURDER (TELLING DEFENDANT HE COULD RECEIVE CONSECUTIVE SENTENCES FOR ATTEMPTED FELONY MURDER AND THE UNDERLYING FELONY (ROBBERY) DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)