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James E. Neuman, for appellant.
Cheryl Hone, for respondent.
SMITH, J.:
The primary issue here is whether Supreme Court's
imposition of three consecutive sentences for robbery is permissible under
the facts of this case and the Penal Law.1
The indictment charged defendant with three
counts of robbery against the Mount Vernon Money Center and two individuals,
for a total of nine counts of robbery in the first
degree (Penal Law 160.15). The jury found defendant guilty
of each of these counts. Supreme Court, exercising its discretionary
sentencing power, imposed the following term of
imprisonment: sentences on the robbery counts relating to the same
victim were to run concurrently and these three groups of concurrent sentences
were to run consecutively with each other.
We hold that defendant's sentence must be
modified as contrary to the dictates of Penal Law 70.25(2) in which the
Legislature has delimited a court's discretion to impose
consecutive sentences for the same criminal acts which constitute multiple
offenses. For sentencing purposes, the theft of property belonging
to two different owners did not convert one act into two when said property
was forcibly stolen from a single person.
The facts are relatively straightforward.
On Christmas eve, 1992, Martin Bailey and Kevin Donahue, two off-duty police
officers working for the Mount Vernon Money Center, drove into the parking
lot of a hotel located in Queens to make a payroll delivery. After
parking their vehicle, Bailey walked toward the security booth while Donahue
remained with the car to unload the money bags. Without warning,
a grey sedan appeared and stopped behind the guards' vehicle. A man
exited the sedan while pointing what appeared to be an automatic weapon
and ordered both guards to lie face down on the ground. Other men
who were similarly armed followed from the sedan.
At their direction, Bailey and Donahue dropped
to the pavement. When Bailey started to move toward the security
booth again, he was repeatedly shot in the back. Bailey attempted
to return fire but lost his grip on his weapon as he staggered to safety.
Finally making his way inside the hotel, Bailey collapsed. The gunmen
proceeded to remove Donahue's weapo from his waistband. At the same
time, Donahue heard rummaging around in the vehicle where he had left the
payroll bags belonging to the Money Center. The thieves then hurried
into their sedan and sped away from the hotel. Getting to his feet,
Donahue discovered that his gun, the payroll and Bailey's gun were all
missing.
A jury found defendant guilty of nine counts
of robbery in the first degree; and one count each of attempted murder,
possession of a weapon in the second degree, possession of a
weapon in the fourth degree, and possession of stolen property in the
fifth degree. Upon sentencing the defendant, Supreme Court imposed
separate sentences for each possession count which were to run concurrently
with each other and with the sentence imposed on the attempted murder conviction.
The structure of the sentences on the robbery counts was necessarily more
complex.
The nine counts of robbery consisted of three
counts related to the theft of Donahue's weapon, three related to the theft
of Bailey's weapon and three counts related to the theft of the payroll
belonging to the Money Center.2 Supreme Court imposed concurrent
sentences on the robbery counts that related to the same victim.
Under its discretionary sentencing powers, Supreme Court determined that
the concurrent terms relating to the same victim should run consecutively
to sentences relating to the other victims. Thus, Supreme Court imposed
three sets of consecutive sentences on the nine robbery counts.
As set forth in the Penal Law, the minimum
and maximum sentencing terms for specific crimes reflect a legislative
policy choice which delimits judicial sentencing authority.3 Yet,
within these statutory ceilings, a court has broad discretion to impose
an appropriate sentence. As this Court noted in People v Day, "Sentencing
courts, in the exercise of their unique judicial function in criminal proceedings,
are wisely allocated wide latitude as they are recognized to be in a superior
position to dispense proportionate and fair punishment" (73 NY2d 208, 212).
That discretionary power includes the ability to impose consecutive penalties
for multiple crimes (Matter of Walker v Walker, 86 NY2d 624, 629 [citing
People v Ingber, 248 NY 302, 305]). In choosing to exercise its discretion,
Supreme Court may properly consider a variety of factors including the
number and seriousness of the offenses involved.
As set forth in 1992, the year defendant committed
his crimes, Penal Law 70.30 provided that when multiple sentences run
concurrently, "the time served under imprisonment on any of the sentences
shall be credited against the minimum periods of all the concurrent sentences,
and the maximum terms merge in and are satisfied by discharge of the term
which has the longest unexpired time to run" (Penal Law 70.30[1][a]).4
Thus, concurrent sentences represent a single punishment measured by the
sentence for the highest grade offense into which all concurrent sentences
merge (see, People ex rel. Maurer v Jackson, 2 NY2d 259, 269-270).
In contrast, when consecutive sentences are
imposed, "the minimum periods of imprisonment are added to arrive at an
aggregate minimum period of imprisonment equal to the sum of all the minimum
periods, and the maximum terms are added to arrive at an aggregate maximum
term equal to the sum of all the maximum terms" (Penal Law 70.30[1][b]).
Under the consecutive sentences for the robbery counts imposed by Supreme
Court, defendant received a term ranging from thirty-seven and one-half
years to seventy-five years. If Supreme Court had, instead, imposed
the same sentences to run concurrently, defendant's term would run
from twelve and one-half years to twenty-five years, a maximum period that
would be over ten years less than the minimum sentence actually imposed.
The Penal Law 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" (Penal
Law 70.25[2]).5 Thus, sentences 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" (People v Laureano, 87 NY2d 640, 643). The
Penal Law defines an "act" as a "bodily movement" (Brown, 80 NY2d at 364
[citing Penal Law 15.00(1)]).
We have noted that it is defendant's act or
omission which constitutes the offense, the "actus reus," that must inform
any inquiry under Penal Law 70.25(2) (see Laureano, 87 NY2d at 643).
Necessarily, a sentencing court must "examine the statutory crimes for
which defendant has been convicted" to determine whether concurrent sentences
are required pursuant to section 70.25(2) (Laureano, 87 NY2d at 643).
However, even if the statutory elements of multiple offenses overlap, sentences
may be imposed to run consecutively when multiple offenses are committed
through separate and distinct acts, though they are part of a single transaction
(see, Laureano, 87 NY2d at 643; People v Brown, 80 NY2d 361, 364).
Imposition of consecutive sentences under the latter inquiry must be supported
by identifiable facts (Laureano, 87 NY2d at 644). Thus, consecutive
sentences may be imposed when either the elements of the crimes do not
overlap or if the facts demonstrate that the defendant's acts underlying
the crimes are separate and distinct.
Applying this analysis to the present facts
requires an examination of the statutory elements of the crimes for which
defendant was convicted. Under the Penal Law, robbery is a
"forcible stealing" in which a defendant "uses or threatens the immediate
use of physical force upon another person" (Penal Law 160.00).
Third degree robbery, the lowest degree of robbery defined in Article 160
of the Penal Law, is a Class D felony with a maximum sentence of seven
years (Penal Law 160.05, 70.00[2][d]). However, when the commission
of a robbery includes certain aggravating circumstances "which cause, threaten
to cause, or increase the risk of physical injury to another, the Legislature
has deemed the crime to be more serious and deserving of greater punishment"
(People v Hedgeman, 70 NY2d 533, 538). For example, a robbery may be elevated
to the first degree, a class B felony, when the defendant causes "serious
physical injury" to any person who is not a participant in the crime (Penal
Law 160.15[1]), is armed with a deadly weapon (Penal Law 160.15[2])
or displays what appears to be a firearm (Penal Law 160.15[4]).
Here, a jury determined that such aggravating
circumstances were present and defendant was convicted of nine counts of
robbery in the first degree. Specifically, defendant was
convicted of three counts of robbery relating to Donahue under Penal
Law 160.15(1), (2) and (4), with the same three provisions of the Penal
Law charged in the three counts relating
to Bailey and the three counts relating to the Money Center.
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 under the facts here was a material element of both offenses. Consequently,
Supreme Court properly imposed concurrent sentences for counts relating
to Donahue charged under Penal Law 160.15(2) (count 6) and Penal Law
160.15(4) (count 9). A similar analysis may be applied to the two
counts relating to the Money Center and charged under Penal Law 160.15(2)
(count 4) and Penal Law 160.15(4) (count 7).
Supreme Court determined that concurrent sentences
for counts 6 and 9 were to run consecutive to concurrent sentences for
counts 4 and 7. The prosecution argues that this
determination was a permissible exercise of discretion because the
crimes charged involved separate and distinct acts affecting different
victims. The prosecution's position cannot be
sustained. A theft is not a robbery unless the defendant "uses
or threatens the immediate use of physical force upon another person" (Penal
Law 160.00; see also, Greenberg, New York Criminal Law, ch. 16, 16.3
[ed. 1996] ["The force or threat must be directed against a person, rather
than property"]). Thus, that defendant was armed and displayed an obvious
and actual firearm before Donahue was a necessary element of the robbery
of the payroll belonging to the Money Center.
Furthermore, the circumstances do not support
the prosecution's contention that the crimes were separate and distinct.
Despite the fact that the stolen property belonged to
two different victims, it is the acts of the defendant that control.
In People v Brathwaite (63 NY2d 839), this Court affirmed the imposition
of consecutive sentences for two convictions of felony murder. As
we noted in that case, "although the two deaths may be said to have occurred
in the course of a single extended transaction -- the robbery -- it was
separate 'acts' which caused the deaths of the owner and the clerk (i.e.,
there is no contention that it was the firing of the same shot that killed
both the owner and the clerk), and neither was a material element of the
other" (id. at 843; see also, People v Truesdell, 70 NY2d 809, 811).
While both cases involved different victims, the criminal acts in Brathwaite
are clearly dissimilar to the inseparable acts underlying the counts at
issue here. Rather, the "actus reus" of counts 4, 6, 7 and 9 was
"merely a single inseparable act violative of more than one statute" which
thereby warrants a single punishment (People ex rel. Maurer v Jackson,
2 NY2d 259, 264 [emphasis in original]; see also, Laureano, 87 NY2d 640
[homicidal act of slitting victim's throat was inseparable from robbery
causing serious physical injury to same person which required sentence
for manslaughter to run concurrently with sentence for robbery in the first
degree]). Thus, the sentences relating to counts 4, 6, 7 and 9 must
run concurrently.
Defendant was also convicted of three counts
of robbery under Penal Law 160.15(1), with each count relating to property
stolen from separate owners, Donahue (count 3), Bailey (count 2) and the
Money Center (count 1). Supreme Court determined that the sentences
imposed on all three counts should run consecutively. However, Penal
Law 160.15(1) proscribes a robbery accompanied by a serious physical
injury to any person who is not a participant in the crime. A serious
physical injury is a "physical injury which creates a substantial risk
of death..." (Penal Law 10.00[10]). Here, the only "serious physical
injury" related to the multiple gunshot wounds of Bailey who, according
to Supreme Court, was "luckily" wearing a bullet proof vest. The
actuality that property belonging to three different people was stolen
does not negate the fact that the shooting of Bailey was a single, inseparable
act for sentencing purposes.
Nevertheless, these crimes also involve a
second element -- the forcible taking from a person. As addressed
above, the forcible taking from Donahue was an inseparable element of the
robbery of the Money Center's property. Thus, counts 1 and 3 must
run concurrently with counts 4, 6, 7 and 9.
On the other hand, the entire tenor of the
robbery of Donahue was distinct from the life-threatening assault upon
Bailey. Consecutive sentencing is permissible when the defendant's
acts are "distinguishable by culpable mental state, nature and manner of
use, time, place and victim" (People v Brown, 80 NY2d 361, 365).
Here, the violent and repeated shooting of Bailey was a separate and distinct
act which was not a material element of the forcible theft of Donahue's
gun and the payroll bags (cf., People v Day, 73 NY2d 208 [possession of
forged checks and then attempting to withdraw such funds from a bank
were "successive separate acts" which permitted consecutive sentencing
for such conduct]; People v Brown, 80 NY2d 361 [possessing stolen vehicle
then recklessly endangering lives by driving into a wall of pedestrians
were independent acts and consecutive sentencing was permissible]).
While all of the sentences relating to Donahue
and the Money Center must run concurrently, these terms may run consecutively
to sentences relating to Bailey. Thus, Supreme Court's discretionary
imposition of consecutive sentencing was permissible for the counts concerning
the robbery of Bailey's handgun with the remaining counts relating to the
other two victims.6
Defendant argues that all of these counts
must run concurrently because "only one robbery in fact occurred." However
defendant chooses to characterize the crime for which he
was convicted, it does not resolve the sentencing issue before this
Court. The fact that the crimes were temporally close in a single
criminal episode is not dispositive (see, People v DiLapo, 14 NY2d 170).
Accordingly, the concurrent sentences for counts 1, 3, 4, 6, 7 and 9 may
run consecutively to the concurrent sentences for counts 2, 5 and 8.
Although it was not required to do so, Supreme Court could properly exercise
its discretion and impose such consecutive terms of imprisonment.7
Accordingly, the order of the Appellate Division
should be modified by remitting to Supreme Court for further proceedings
in accordance with this opinion and, as so modified, affirmed.
F O O T N O T E S
1. Defendant also contends on appeal that his constitutional right to counsel was violated during a line-up identification. That issue in this case is a mixed question of law and fact and, since the record supports Appellate Division's conclusions, the issue is beyond the review powers of this Court. Defendant's remaining contentions are baseless.
2 Specifically, count 1 charged that defendant forcibly
stole certain property of the Money Center and caused serious physical
injury to Bailey; count 2 charged that defendant forcibly stole Bailey's
handgun and caused serious physical injury to Bailey; count 3 charged that
defendant forcibly stole Donahue's handgun and caused serious physical
injury to Bailey; count 4 charged that defendant forcibly stole certain
property of the Money Center while armed with a deadly weapon; count 5
charged that defendant forcibly stole Bailey's handgun while armed with
a deadly weapon; count 6 charged that defendant forcibly stole Donahue's
handgun while armed with a deadly weapon; count 7 charged that defendant
forcibly stole certain property of the Money Center and displayed what
appeared to be a handgun; count 8 charged that defendant forcibly stole
Bailey's handgun and displayed what appeared to be a handgun; and count
9 charged that defendant forcibly stole Donahue's handgun and displayed
what appeared to be a handgun.
3. The statutory limits for sentences relating to crimes such
as defendant's robbery conviction are illustrative. Penal Law 160.15,
robbery in the first degree, is a Class B violent
felony offense (Penal Law 70.02[1][a]). Under Penal Law 70.00,
a court must impose an indeterminate sentence of imprisonment that shall
not exceed a maximum term of twenty-five
years for a conviction of a Class B felony (Penal Law 70.00[1], [2][b]).
The minimum period of imprisonment under an indeterminate sentence for
a violent felony offense must be fixed
by a court at one-third of the maximum term imposed (Penal Law 70.02[4]).
A court may adjust the minimum term for such an offense (up to one-half
the maximum term imposed) for a
conviction of a class B felony offense while armed (Penal Law 70.02[4]).
4. The cited provisions of Penal Law 70.30 were revised in 1995 and
expressly incorporated both indeterminate and determinate sentences therein
(see L 1995, ch 3). That single
distinguishing feature does not affect our discussion herein.
5. This Court has noted that the constitutional prohibition against double jeopardy "is embodied in, if not extended by" Penal Law 70.25(2) (People v Snyder, 241 NY 81, 83 [construing Penal Law 1938, the statutory precursor to Penal Law 70.25]). Section 70.25(2) does not prohibit convictions of multiple offenses containing overlapping elements. Rather, the statute prohibits double punishment for an act or omission which violates more than one section of the law and is accordingly punishable in different ways.
6. Supreme Court properly determined that counts 2, 5 and
8 under Penal Laws 160.15(1), 160.15(2) and 160.15(4), respectively,
relating to the forcible taking of Bailey's gun
must run concurrently. Defendant was armed, displayed his weapon
and caused Bailey's injuries, all of which constitute a single act against
Bailey.
7. We note that both the aggregate maximum term and the aggregate
minimum period of imprisonment for consecutive sentences are subject to
certain statutory limits (Penal Law
70.30[1][b]) under which the Department of Correctional Services is
bound to calculate the maximum sentence for defendant at 50 years (see,
Penal Law 70.30[1][e][vi]). In accordance with the opinion herein,
defendant's maximum sentence remains unchanged at the statutory limit of
50 years.
* * * * * * * * * * * * * * * * *
Order modified by remitting to Supreme Court, Queens County, for further
proceedings in accordance with the opinion herein and, as so modified,
affirmed. Opinion by Judge Smith. Chief Judge Kaye and Judges
Simons, Titone, Bellacosa, Levine and Ciparick concur.
Decided December 20, 1996