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Attempted Murder and Attempted Robbery Convictions, Under the Facts, Required Concurrent, Not Consecutive, Sentences—Applicable Law Described in Some Depth

The Second Department determined defendant, who was convicted of attempted murder and attempted robbery, must be sentenced to concurrent, not consecutive, terms of imprisonment for those two offenses.  The defendant displayed a handgun and demanded money from the victim.  When the victim refused, the defendant struck and shot the victim:

Penal Law § 70.25(2) provides that 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” … . However, “trial courts retain consecutive sentence discretion when separate offenses are committed through separate acts, though they are part of a single transaction” … .

Here, consecutive sentences may not be imposed because the act which constituted the offense of attempted murder in the second degree was a material element of the offense of attempted robbery in the first degree. A person is guilty of attempted murder in the second degree when, with intent to commit murder, he or she engages in conduct which tends to cause the death of another person (see Penal Law §§ 110.00, 125.25[1]). A person is guilty of attempted robbery in the first degree, under the Penal Law section charged here, when he or she attempts to forcibly steal property and is armed with a deadly weapon (see Penal Law § 160.15[2]). A person forcibly steals when he or she, in the course of committing a larceny, uses or threatens the immediate use of physical force to prevent or overcome resistance to the taking of the property or to compel the owner to deliver the property (see Penal Law § 160.00[1], [2]). Here, the actus reus of the attempted murder charge was the firing of three shots at Moore, and the actus reus of the attempted robbery charge was the use or threatened use of physical force to attempt to steal property while armed with a deadly weapon. The act which constitutes attempted murder in the second degree is subsumed within the element of using force. Thus, the act constituting attempted murder in the second degree can be a material element of attempted robbery in the first degree … .

In addition, the People have failed to establish that the acts constituting the attempted robbery in the first degree were separate and distinct from the acts constituting the attempted murder in the second degree … . Here, consecutive sentences could not be imposed because it is impossible to determine whether the firing of three gun shots at Moore, which formed the basis of the verdict of guilt on the attempted murder charge, was also the use of force which formed the basis of the jury’s verdict of guilt on the attempted robbery charge … . Therefore, the People have failed to establish that the acts constituting attempted robbery in the first degree were separate and distinct from those constituting attempted murder in the second degree. People v Grant, 2014 NY Slip Op 08859, 2nd Dept 12-17-14

 

Department of Corrections Must Comply with State and Federal Courts’ Expressed Intent to Impose Concurrent Sentences

The Third Department, over a dissent, determined that the intent in both the state and federal proceedings was to impose concurrent sentences and ruled that the Department of Corrections could not act to make the sentences consecutive:

Issues involving sentencing by dual sovereigns are generally considered under the doctrine of primary jurisdiction and occasionally give rise to complexities … . We do not need to engage in an extended discussion of the intricacies of primary jurisdiction and sentencing by dual sovereigns in this case.Succinctly stated, “[j]ust as the dual sovereignty doctrine acknowledges and protects the rights of each sovereign to exact as much punishment for a crime as that sovereign desires, the doctrine also acknowledges and protects the rights of each sovereign to exact as little punishment for the crime as that sovereign desires” … . Here, it is clear that both sovereigns intended the state and federal sentences to run concurrently. To run the sentences sequentially essentially because of the manner in which they were administered despite express intent otherwise by both sovereigns is analogous to a governmental entity other than the court lengthening a sentence, which this state does not permit …  Matter of Hall v LaValley, 515985, 3rd Dept 3-27-14

 

No Reference to When Child-Pornography Images Downloaded/Therefore Consecutive Sentences Could Not Be Imposed

The Third Department determined that consecutive sentences could not be imposed for the downloading of child pornography without specific reference to the date and time of each download:

Consecutive sentences are authorized when “‘the facts demonstrate that the defendant’s acts underlying the crimes are separate and distinct'” … .  The determination as to whether defendant committed separate and distinct acts of possession turns upon when the images came into his possession … .  While the accusatory instrument and defendant’s plea allocution each specified the date and time upon which the images were retrieved from defendant’s computer, there was no information regarding defendant’s act of downloading the images.  Accordingly, consecutive sentences were not authorized in the absence of such information… . People v Pardy, 105529, 3rd Dept 1-30-14

 

Criteria for CPL 440.20 Motion Explained/Predicate Offenses Must Run Concurrently

The Fourth Department noted the trial court applied the wrong criteria to defendant’s motion pursuant to CPL 440.20 to vacate his consecutive sentences and determined defendant’s sentences must run concurrently.  Either the robbery or forgery count could serve as the predicate for the felony assault count and therefore the sentences for the predicate counts must run concurrently with the sentence for felony assault:

…[T]he court erred in denying the motion on the ground that defendant could have raised this issue on his direct appeal.  Mandatory denial of a motion pursuant to CPL 440.20 is required only when the issue “was previously determined on the merits upon an appeal from the judgment or sentence” (CPL 440.20 [2]), which in this case it was not … .  The court erred in conflating the provisions of CPL 440.10 with those of CPL 440.20.  The procedural bar set forth in CPL 440.10 (2) (c) “applies only to motions made pursuant to section 440.10, and it is undisputed that the instant motion was made pursuant to section 440.20” … .

We agree with defendant that the consecutive sentences for the robbery and forgery counts are illegal under the facts of this case. The indictment and charge to the jury set forth that either count could serve as the predicate for the count of felony assault, and thus the predicate counts must run concurrently with the count of felony assault … .  The sentences imposed on the counts of robbery and forgery must therefore also run concurrently… . People v Povoski, 1050.1, 4th Dept 11-8-13

 

Concurrent, Not Consecutive, Sentences Should Have Been Imposed Where “Actus Reus” Was a Single, Inseparable Act

The Second Department corrected a sentence which illegally imposed consecutive, as opposed to concurrent, terms of imprisonment.  The defendant lured a 16 year-old girl to his apartment where they had consensual sex.  Then defendant then allowed the co-defendants to go into the bedroom where they had sex with her.  The court explained:

The imposition of consecutive sentences on the convictions of rape in the first degree, criminal sexual act in the first degree, and sexual abuse in the first degree, was illegal, except with respect to the sentence imposed on the conviction of criminal sexual act in the first degree under count 11. “Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand” … . Moreover, “a defendant may not waive the right to challenge the legality of a sentence” … .

Section 70.25 of the Penal Law provides that “[w]hen 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” (Penal Law § 70.25[2]). “Under either of those circumstances, the court has no discretion; concurrent sentences are mandated” … . In determining whether two crimes were separate and distinct for the purposes of imposing consecutive or concurrent sentences, “it is the acts of the defendant that control” … . When the actus reus, or the ” wrongful deed that comprises the physical components of a crime'” …, is a “single inseparable act” that violates more than one statute, single punishment must be imposed … .

Here, the actus reus committed by the defendant in concert with each codefendant was “a single, inseparable act” …. With respect to each codefendant, the defendant’s actus reus violated more than one statute due solely to the acts committed by the codefendant after the defendant had already completed his role. Each actus reus of the defendant “warrants [only] a single punishment” ….  People v Singh, 2013 NY Slip Op 06033, 2nd Dept 9-25-13

 

Sentence for Offenses Rising from Same Incident Must Be Concurrent

In determining the sentencing court had erroneously imposed consecutive sentences for offenses arising out of the same incident, the Fourth Department wrote:

“[S]entences 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” (… Penal Law § 70.25 [2]). “The defendant benefits if either prong is present, and the prosecution’s burden is to countermand both prongs”…

Here, “the acts which constituted the crime of endangering the welfare of a child were not separate and distinct from the acts which constituted the crimes of” robbery and criminal mischief ….  As a result, the sentences imposed on the robbery and criminal mischief counts must run concurrently with the sentences imposed on the endangering the welfare of a child counts. Furthermore, the evidence establishes that, during his flight from the department store, defendant “floored” his vehicle in reverse with his driver’s side door open, striking the security guard as well as the vehicle parked beside his vehicle.  Those acts served as the basis for the criminal mischief count and for the “use of physical force” element of the robbery count (Penal Law § 160.00; see § 160.05), and thus the sentences imposed on the robbery and the criminal mischief counts must also run concurrently ….  People v Dekenipp, KA 11-00855, 204, 4th Dept, 4-26-13

 

 

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