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CONSECUTIVE SENTENCES NOT SUPPORTED BY ALLEGATIONS OR PLEA ALLOCUTION, NO ALLEGATION THE THREE CRIMINAL POSSESSION OF A WEAPON COUNTS WERE SEPARATE ACTS (SECOND DEPT).

The Second Department determined consecutive sentences should not have been imposed for the three counts of criminal possession of a weapon to which defendant pled guilty. There were no allegations of three separate acts of possession:

Sentences imposed for two or more offenses may not run consecutively where, inter alia, “a single act constitutes two offenses” … . Conversely, consecutive sentences may be imposed when, among other things, “the facts demonstrate that the defendant’s acts underlying the crimes are separate and distinct” … . The People bear the burden of establishing the legality of consecutive sentencing … .

Here, no facts were alleged in the Superior Court Information or adduced at the defendant’s plea allocution which establish three separate acts of possession … . Accordingly, there was no basis for imposing consecutive sentences for three counts of criminal possession of a weapon in the third degree … . People v Bailey, 2018 NY Slip Op 08674, Second Dept 12-19-18

SENTENCING

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