Whether a defendant may be sentenced to consecutive prison terms on the basis of a single act which constitutes more than one criminal offense.
No. The New York Court of Appeals found such sentencing violative of Penal Law section 70.25(2), which limits a court's discretion to impose consecutive sentences for the same criminal acts which constitute multiple offenses. Sentences imposed for two or more offenses may not run consecutively: " (1) Where a single act constituted two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other." People v. Laureano, 87 N.Y.2d 640, 643 (1996). Separate and distinct acts are required to impose consecutive sentences. Here, the acts and resulting robberies were neither separate nor distinct. Thus, the basis of the numerous counts against Defendant was "a single inseparable act violative of more than one statute." People ex rel. Maurer v. Jackson, 2 N.Y.2d 259, 264 (1957).
Requiring a separate act to occur for the imposition of consecutive terms appears to have significant support in the case law of the lower courts. For instance, in People v. Grant the court found that where plaintiffs were convicted of an armed robbery of a gas station in which the manager was shot in the back, the plaintiffs could not be sentenced to consecutive terms. 465 N.Y.S.2d 750 (2d Dept. 1983) (reasoning that the attempted murder and assault contained an element of one of the robbery convictions). See also People v. Dehri, 487 N.Y.S.2d 820 (2d Dept. 1980) (holding that consecutive terms were inappropriate where element of robbery conviction was also found in attempted murder and firearm convictions); People v. Smiley, 503 N.Y.S.2d 49 (1st Dept. 1986) (holding that sentences for robbery, assault, and burglary could not run consecutively as identical material elements were present in each). Perhaps the most pristine example of the separate act requirement is found in People v. Luster, 538 N.Y.S.2d 273 (1st Dept. 1989), appeal denied 74 N.Y.2d 666. The defendant in Luster was sentenced to consecutive sentences for attempted second degree murder, first degree assault, and first degree use of a firearm. The Luster court held that a single shot fired by the defendant which passed through the cheek and neck of one victim and hit a second victim in the shoulder should be considered to be one act. Therefore the defendant could not be subject to consecutive terms.
The Ramirez court rests upon well-settled law when it states that "consecutive sentencing is permissible when the defendant's acts are distinguishable by culpable mental state, nature and manner of use, time, place and victim." Ramirez at 5 (quoting People v. Brown, 80 N.Y.2d 361, 365 (1992)(holding possession of stolen vehicle and driving into crowded sidewalk were distinct acts punishable through consecutive terms)); see also People v. Brathwaite, 63 N.Y.2d 839 (1984) (cited by Ramirez at 4) (holding consecutive terms appropriate where defendant shot two different victims during the course of a robbery and no evidence existed that the same shot hit both victims).
Initially, the Supreme Court imposed three sets of consecutive sentences upon Defendant -- one set for circumstances attendant to the robbery of Bailey's handgun, one set for circumstances attendant to the robbery of Donahue's handgun, and one set for circumstances attendant to the robbery of the Money Center payroll. Additionally, each of these sets of circumstances involved three separate crimes: the theft itself accompanied by "serious physical injury," N.Y. Penal Law § 160.15(1), theft while "armed with a deadly weapon," N.Y. Penal Law § 160.15(2), and theft while "displaying what appears to be a firearm," N.Y. Penal Law § 160.15(4). The Supreme Court ordered that the sentences for these three separate crimes be served concurrently for the thefts against Bailey, Donahue, and the Money Center. The end result would have been for Defendant to serve concurrent sentences for the three crimes involving Bailey, followed by the serving of the concurrent sentences for the three crimes involving Donahue, followed by the serving of the concurrent sentences for the three crimes involving the Money Center.
The Court of Appeals, however, notes that Penal Law § 70.25(2), governs when concurrent sentences must be imposed rather than consecutive sentences and finds that the Supreme Court had improperly imposed consecutive rather than concurrent sentences for the crimes surrounding the theft of Donahue's gun and the crimes surrounding the theft of the Money Store payroll. Penal Law § 70.25(2) provides that sentences imposed for two or more offenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) where single act constitutes one of the offenses and a material element of the other.
For instance, the Supreme Court correctly applied Penal Law § 70.25(2) when it imposed concurrent sentences for counts relating to Donahue because, although Defendant may be convicted under separate crimes for the taking of Donahue's gun while armed with a deadly weapon and displaying what appeared to be a firearm, Defendant's single act was a material element of both offenses. The Supreme Court, however, erred when it determined that stealing Donahue's gun and stealing the Money Store payroll were separate and distinct crimes, thus warranting consecutive sentences. The Court of Appeals holds that even though Defendant stole property belonging to two different victims, he committed only one act. Thus, that defendant was armed and displayed a firearm before Donahue was a necessary element and part of a single act to steal the Money Center property. Accordingly, Defendant should serve concurrent sentences for all the crimes involving Donahue and the Money Center.
On the other hand, the violent and repeated shooting of Bailey was a separate and distinct act which was not a material element of the forcible theft of either Donahue's gun or the payroll. The Court finds that even though the theft of Bailey's gun and the life threatening assault were part of the larger act of robbing the Money Center, the nature of the act makes it separate from the theft of the gun and the robbery. In such instances, consecutive sentencing is permissible when the defendant's acts are "distinguishable by culpable mental state, nature and manner of use, time, place, and victim. " See People v. Brown, 80 NY2d 361, 365 (1992).
Similarly, the superior court of Pennsylvania affirmed the consecutive sentencing of a defendant who was convicted of two counts of robbery and one count of ownership of a firearm by a former convict. Commonwealth v. Rozplochi, 385 Pa. Super. 357 (1989). The court did intimate, however, that if the defendant had been a first-time offender who had threatened more than one person in one robbery crime, "lengthy consecutive sentences might arguably result in a punishment so excessive as to pose a substantial question as to whether the aggregate sentence was appropriate under the sentencing code." 385 Pa. Super. at 367.
In California, courts have held that consecutive sentencing is favored over concurrent sentencing where the offenses committed involved multiple victims and the defendant has been convicted of two or more counts of crimes with at least one of the counts involving multiple victims. People v. Humphrey, 138 Cal. App. 3d 881 (1982). Hence, although California recognizes consecutive sentencing, in that case which involved two counts of robbery, the court of appeals overturned the lower court's sentencing due to its improper reliance and interpretation of the multiple-victim factor of the state rule on consecutive sentencing.
In contrast, Texas state courts have ruled against consecutive sentencing. Guidry v. State, 909 S.W.2d 584 (Tex.App. 1995). The Guidry court held that even though the court convicted the defendant of two robberies occurring on separate days, the robberies were criminal acts arising out of the same offense. Consequently, in overturning the lower court, the court of appeals determined that "stacking" the sentencing for the two counts of robbery was an abuse of discretion by the trial court, opting in favor of concurrent sentences.
Similarly, Florida state courts have ruled against consecutive sentencing. In Taylor v. State, the district court of appeals reversed the consecutive sentencing of a defendant convicted of eight counts of armed robbery arising from the same offense. 658 So. 2d 635 (Fla. Dist. Ct. App. 1995). Overturning the lower court's seven consecutive life sentences and a consecutive sentence of life probation for the eight counts of armed robbery, the District Court of Appeals held that such consecutive sentencing was erroneous since all of the robberies arose out of the same offense. Citing one of its own opinions, the court explained that "when offenses occur in one criminal episode, a trial court may not enhance the sentences pursuant to the habitual offender statute and then increase the total penalty by ordering that the sentences run consecutively. This also applies to a sentence of imprisonment on one count, followed by a term of probation on another count arising from the same incident." 658 So. 2d at 635 (citing Green v. State, 643 So. 2d 1177 (Fla. 1994)).