Opinion
1742/98.
Decided July 12, 2006.
Defendant was convicted by jury verdict of manslaughter in the second degree, assault in the second degree and criminal possession of a weapon in the second degree and was sentenced on December 1, 1998 to consecutive terms of imprisonment of five to fifteen years, three and one-half to seven years and five to ten years, respectively. He had been charged with a co-defendant with murder in the second degree, attempted murder in the second degree and assault in the first degree, all intentional crimes. Defendant's conviction was affirmed by the Appellate Division Second Department ( People v. McGill, 272 AD2d 414 [2nd Dept 2000]) and leave to appeal to the Court of Appeals was denied ( People v. McGill, 95 NY2d 868).
Defendant now moves pursuant to CPL § 440.20 to set aside the sentence on the grounds that the imposition of consecutive sentences was unauthorized and illegally imposed as a matter of law. Specifically, defendant maintains that the crimes for which he was convicted constituted a single act. Defendant contends that the shooting assault of a bystander was part of the same act of shooting the manslaughter victim and was inseparable from the act of possessing the weapon for that purpose.
When a defendant is sentenced for two or more offenses, the court is authorized to determine whether the sentences should be imposed concurrently or consecutively. Penal Law § 70.25(2) provides that sentences of imprisonment must be concurrent either when the offenses were "committed through a single act or omission" or when they were committed "through an act or omission which in itself contributed to one of the offenses and also was a material element of the other".
The sentencing court must first examine the statutory definition of the crime and then determine whether the actus reus element is the same for all the offenses or if by definition the actus reus for one offense is a material element of others ( People v. Laureano, 87 NY2d 640, 643). "If it is neither, the People have satisfied their obligation showing that concurrent sentences are not required," ( Id.) Where, however, some overlap exists between the statutory elements, the sentencing court maintains its discretionary authority if it can be shown that the offenses were committed through separate and distinct acts though they are part of the same criminal transaction ( Id.)
The burden of proving that consecutive sentences are authorized rests with the People ( People v. Parks, 95 NY2d 811, 815; People v. Day, 73 NY2d 208, 211). Where the trial evidence indicates that different acts or the same act could constitute an element of several offenses, the sentencing analysis must focus on the court's instruction to the jury in order to determine the factual basis for the verdict ( see People v. Parks at 815; People v. Amato, 1 AD3d 713, 716-717 [3rd Dept 2003]). Where it is impossible to determine through identifiable facts from the record whether the acts were separate and distinct the People will have failed to meet their burden and consecutive sentences are unauthorized ( Id.)
The relationship between the manslaughter and assault conviction is straight forward. Each shot fired constituted a successive criminal act. Penal Law § 15.00(1) defines the term "act" as any "bodily movement" ( People v. Brown, 80 NY2d 361, 364-365) which in this instance includes the pulling of the trigger resulting in the firing of shots at different individuals. Thus, although clearly part of the same criminal transaction, the firing of multiple shots that led to the death of one person and the wounding of another were separate and distinct acts punishable by consecutive sentences ( People v. Boone, ___ AD3d ___, 816 NY2d 570 [2nd Dept 2006]; People v. Maldonado, 5 AD3d 505 [2nd Dept]).
The act of possessing a weapon is also punishable as a separate crime in this case. Here, defendant made a statement in which he admitted that he had previously purchased the weapon to protect himself from other individuals who were not involved in this incident. This admission established the gun possession as a separate incident unattached to the attack and constituted the factual basis for the jury verdict on the weapons charge. This conclusion is also reflected in the jury's rejection of the original intentional charges in favor of the ultimate conviction for reckless crimes. By not finding that defendant acted intentionally, the jury determined that defendant possessed the weapon, at least originally, with a purpose unrelated to an intent to shoot the individuals in this case. Thus, the jury found by its verdict that the crime of criminal possession of a weapon in the second degree had been completed before the weapon was used in this incident ( People v. Salcedo, 92 NY2d 1019, 1021-1022).
Accordingly, defendant's motion is denied.
This decision shall constitute the order of the court.