IT WAS THEORETICALLY POSSIBLE (ALTHOUGH HIGHLY UNLIKELY) THE TWO ASSAULT CONVICTIONS WERE BASED UPON THE SAME ACT, DEFENDANT SHOULD NOT HAVE BEEN GIVEN CONSECUTIVE SENTENCES.

The Second Department determined defendant should have been sentenced concurrently for his two assault convictions. The victim was stabbed 20 times and his face was slashed. Defendant was convicted of two counts of assault first—intent to disfigure and intent to cause serious injury. It was not possible to determine whether the jury convicted on both counts based upon only the slashing of the victim’s face as opposed to two different acts:

We agree with the defendant’s contention. Pursuant to Penal Law § 70.25(2), concurrent sentences must be imposed “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.” ” Thus, sentences [of imprisonment] imposed for two or more offenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other'” … . Nonetheless, ” trial courts retain consecutive sentence discretion when separate offenses are committed through separate acts, though they are part of a single transaction'” … .

Here, the People have failed to establish that the acts constituting the respective assault in the first degree convictions were separate and distinct from each other as required by the statute … . It is impossible to determine from the record whether the slashing of an “X” into the victim’s face, which formed the basis for the assault in the first degree “intent to disfigure another person seriously and permanently” conviction … , also formed the basis for the jury’s verdict of guilt on the assault in the first degree “intent to cause serious physical injury” conviction …  Thus, the People failed to establish that the acts constituting each of the two assault in the first degree convictions were separate and distinct from each other. People v Henderson, 2017 NY Slip Op 01885, 2nd Dept 3-15-17

 

CRIMINAL LAW (IT WAS THEORETICALLY POSSIBLE (ALTHOUGH HIGHLY UNLIKELY) THE TWO ASSAULT CONVICTIONS WERE BASED UPON THE SAME ACT, DEFENDANT SHOULD NOT HAVE BEEN GIVEN CONSECUTIVE SENTENCES)/SENTENCING (IT WAS THEORETICALLY POSSIBLE (ALTHOUGH HIGHLY UNLIKELY) THE TWO ASSAULT CONVICTIONS WERE BASED UPON THE SAME ACT, DEFENDANT SHOULD NOT HAVE BEEN GIVEN CONSECUTIVE SENTENCES)/CONCURRENT SENTENCES (IT WAS THEORETICALLY POSSIBLE (ALTHOUGH HIGHLY UNLIKELY) THE TWO ASSAULT CONVICTIONS WERE BASED UPON THE SAME ACT, DEFENDANT SHOULD NOT HAVE BEEN GIVEN CONSECUTIVE SENTENCES)/CONSECUTIVE SENTENCES (IT WAS THEORETICALLY POSSIBLE (ALTHOUGH HIGHLY UNLIKELY) THE TWO ASSAULT CONVICTIONS WERE BASED UPON THE SAME ACT, DEFENDANT SHOULD NOT HAVE BEEN GIVEN CONSECUTIVE SENTENCES)