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ALTHOUGH THE MURDER WAS A NECESSARY ELEMENT OF THE BURGLARY CHARGE, THE PEOPLE JUSTIFIED CONSECUTIVE SENTENCES BY PRESENTING PROOF THE TWO CRIMES ENCOMPASSED DISTINCT ACTS.

The Court of Appeals, in a full-fledged opinion by Judge Klein, determined there was sufficient evidence the burglary and murder were separate acts to justify consecutive sentences. The defendant was charged with breaking and entering his girlfriend’s home, dragging her downstairs and then murdering her:

“By definition, the act of causing death is subsumed within the element causing . . . physical injury” … and, thus, the act constituting murder here was a material element of that burglary count. The People therefore concede that, with respect to the latter burglary charge, they were required to identify facts establishing that defendant committed this offense and murder through separate and distinct acts. Because “the People offer[ed] evidence of the existence of . . . separate and distinct act[s]” with respect to that count of burglary in the first degree — indeed, with respect to both counts — “the trial court ha[d] discretion to order consecutive sentences” … . People v Brahney, 2017 NY Slip Op 02465, CtApp 3-30-17

 

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