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CONSECUTIVE SENTENCES FOR CRIMINAL SALE OF A CONTROLLED SUBSTANCE AND CONSPIRACY WERE PROPER, CRITERIA EXPLAINED IN SOME DEPTH (SECOND DEPT). ​

The Second Department determined defendant was properly given consecutive sentences for criminal sale of a controlled substance and conspiracy:

Penal Law § 70.25(2) provides: “When more than one sentence of imprisonment is imposed on a person 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, the sentences . . . must run concurrently” … .

“[T]he commission of one offense is a material element of a second for restrictive sentencing purposes if, by comparative examination, the statutory definition of the second crime provides that the first crime is also a necessary component in the legislative classification and definitional sense” … . Conspiracy in the second degree has two elements, (1) an agreement with one or more persons to engage in or cause the performance of conduct constituting a class A felony … , and (2) “an overt act . . . committed by one of the conspirators in furtherance of the conspiracy” … . While criminal sale of a controlled substance in the second degree is a Class A-II felony … , it is one of many Class A felonies contained in the Penal Law, and conspiracy in the second degree requires only the agreement to engage in conduct constituting a Class A felony, not the commission of such conduct. Furthermore, while “[t]he overt act must be an independent act that tends to carry out the conspiracy, [it] need not necessarily be the object of the crime” … . Thus, criminal sale of a controlled substance in the second degree … is not a material element of conspiracy in the second degree … .

Moreover, the acts underlying the crimes committed by the defendant were separate and distinct … . Crimes are separate when commission of one crime is complete at the time that the intent is formed to commit the second crime, even if the first crime is an element of the second crime … . The fundamental question is not whether the same criminal intent inspired the whole transaction, but whether separate acts have been committed with the requisite criminal intent … . People v Blue, 2021 NY Slip Op 02305, Second Dept 4-14-21

 

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