To determine whether concurrent sentences are required, a sentencing court must examine the actus reus elements of the several crimes. Sentences may not run consecutively for two or more crimes where: (1) a single act constitutes two offenses, or (2) a single act constitutes one of the offenses and a material element of the other. The Court also stated that if the People cannot show the lack of overlap between these statutory elements, they may nevertheless establish the legality of consecutive sentencing by establishing that the defendant's "acts or omissions" for the crimes were separate and distinct. People v. Brown, 80 N.Y.2d 361, 364 (N.Y. 1992) and People v. DiLapo, 14 N.Y.2d 170, 172 (N.Y. 1964).
The actus reus for manslaughter in the first degree is "caus[ing] the death of [a] person." Penal Law § 125.20(1) (McKinney 1987). The actus reus elements for robbery in the first degree are stealing property and, while in the course of committing the crime or immediately fleeing therefrom, "caus[ing] serious physical injury to any person who is not a participant in the crime." Penal Law § 160.15(1) (McKinney 1988). The Court determined that the act constituting first degree manslaughter could be a material element for first degree robbery. Therefore, the People failed to demonstrate the lack of overlap between these statutory elements. As a result, the People could establish the legality of consecutive sentencing only by showing that the defendant's acts with respect to the two crimes were separate and distinct.
Because a negotiated guilty plea settled the present action, the People were limited in the facts they could use to establish the separateness and distinctness of the defendant's acts. In general, if a defendant pleads guilty to counts charged in the indictment, the People may use facts from the allegations of those counts as well as facts extracted at the plea allocution. People ex rel. Maurer v. Johnson, 2 N.Y.2d 259, 263-264 (N.Y. 1957). If a defendant is convicted on a plea to a lesser offense than that charged in the indictment, the People may use only those facts admitted during the plea allocution. People v. Griffin, 7 N.Y.2d 511, 515 (N.Y. 1960).
The defendant in the present case pled guilty to the robbery count as alleged in the indictment, but pled guilty to manslaughter as a lesser offense to the murder count. The People were allowed to use facts alleged in the indictment with respect to the robbery offense, but only facts from the allocution with respect to the manslaughter offense. The defendant admitted at the allocution that he caused the victim's death by cutting his throat. The robbery count charged in the indictment offered no additional facts. Because the People provided no facts to support the contention that the victim's death was caused by an act other that the cutting of his throat, the People failed to establish that the act constituting manslaughter was separate and distinct from the physical injury element of first degree robbery. Thus, the Court held the defendant was entitled to serve his sentences concurrently.
Second, the dissent disagreed with the majority's statutory analysis. The majority relied solely upon the actus reus elements of crimes for determining whether sentences should run concurrently. According to the dissent, a consideration of mental state is also necessary to the analysis. Where concurrent sentencing is sought because a single act constitutes one of the offenses and a material element of the other, prior law mandates that the "act or omission" comprise the entire first offense, including any mens rea elements, and an element of the second. People v. Day, 73 N.Y.2d at 211; People v. Catone, 65 N.Y.2d 1003 (N.Y. 1985); People ex rel. Maurer v. Jackson, 2 N.Y.2d at 264. The dissent argued that the entire crime of first degree manslaughter cannot be considered an element of robbery in the first degree because the former offense requires "intent to cause serious physical injury" (Penal Law § 125.20), which is not a necessary component of the latter. Moreover, the "caus[ing] serious physical injury" (Penal Law § 160.15(1)) element of robbery in the first degree is distinct from first degree manslaughter's element of "death" (Penal Law § 125.20(1)). Thus, the offenses should be deemed legally distinct.
To underscore its argument that the offense of first degree manslaughter should not be deemed an element of robbery in the first degree, the dissent set forth a hypothetical anomaly that would inevitably result from the majority's holding. If the defendant had plead guilty to robbery in the third degree, an offense that does not require the causing of serious physical injury as an element (Penal Law § 160.05), the defendant would have been forced to serve consecutive sentences. The dissent did not believe that the legislature could have intended such a "topsy-turvy" result.
However, consecutive sentences are not the norm. See Illinois v. Wrice, 488 N.E.2d 1313 (Ill. Ct. App. 1986). The court held that the heinous nature of the offenses warranted consecutive extended sentences for rape and sexual assault, but acknowledged that consecutive sentences are rarely appropriate and must be imposed sparingly.
Generally, trial courts may decide whether sentences run concurrently or consecutively. In Colorado, the imposition of concurrent sentences is required only if the counts for which a defendant is convicted are supported by identical evidence. People v. Montgomery, 669 P.2d 1387 (Colo. 1983). If the convictions are not supported by identical evidence, the trial court may impose either consecutive or concurrent sentences.
In some jurisdictions (like New York) consecutive sentences cannot be imposed except as expressly authorized by statute. California's Penal Code § 1170.1 applies to most felonies and fixes the term of confinement for each consecutive sentence. (Cal. Penal Code § 1170 (West 1982)). Other California statutes have been interpreted to require consecutive sentences. See, e.g., People v. Fitch, 217 Cal. Rptr. 197 (Cal. Ct. App. 1985) (holding that Cal. Penal Code § 667.6(d), specifying consecutive terms for certain sex offenses, always applies to cases within its terms).
Various particular matters have been found to justify consecutive sentences, such as unusual risks to public safety. See Tennessee v. Grady, 619 S.W.2d 141, 144 (Tenn. Cr. App. 1980) (vacating consecutive sentence because attempted child molestation is not a threat to human life). Courts have also considered other particular matters in deciding between concurrent and consecutive sentencing. See Curry v. Indiana, 453 N.E.2d 1006 (Ind. 1983) (holding that a defendant's history of criminal activity may warrant consecutive sentencing) and People v. Thurs, 222 Cal. Rptr. 61 (Cal. Ct. App. 1986) (recognizing the vulnerability of a victim as a basis for consecutive sentencing).
Federal courts may depart from § 5G1.2 of the federal sentencing guidelines and impose consecutive sentences for multiple convictions if the three-step procedure formulated in United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir. 1989) is followed. United States Sentencing Commission, Guidelines Manual, § 5G1.2 (Nov. 1995). The Sentencing Reform Act, 18 U.S.C § 3584(a) (1994), also addresses consecutive sentencing for multiple convictions, stating that if multiple terms of imprisonment are imposed at the same time, the terms may run concurrently or consecutively. The sentences may not run consecutively for an attempt and for another offense which was the sole objective of the attempt.
Defendants convicted of related charges have argued that consecutive sentencing violates constitutional prohibitions against multiple punishments for the same offense. The Supreme Court has held that whether such punishments violate double jeopardy protection is a question of legislative intent. Missouri v. Hunter, 459 U.S. 359 (1983). Where the legislature has specifically authorized consecutive sentences for the same conduct under two statutes, such punishment may be imposed under those statutes in a single trial. The Blockburger test assesses whether the legislature has provided that two statutory offenses may be punished cumulatively: Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to determine if there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304 (1932). If each offense requires proof of a fact which the other does not, then the two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment. West Virginia endorses this test for the permissibility of consecutive sentences in West Virginia v. Myers, 298 S.E.2d 813 (W.Va. 1982).
It may be advantageous at times for prosecutors to pursue plea agreements in which the defendant pleads guilty to multiple but greater offenses that result in concurrent sentencing. Cf. Libretti v. United States, 116 S. Ct. 356 (1995) (upholding plea agreement whereby defedant forfeited property unrelated to his charged crimes).
The court left unanswered whether the vacatur of defendant's guilty pleas could be a proper remedy when the People have failed to afford the defendant the safeguards New York state law provides.