The opinion of the court was delivered by: Graffeo, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
In this case, we hold that the actus reus underlying the crime of criminal sexual act in the third degree does not constitute a "material element" of falsifying business records in the first degree. We therefore agree with the Appellate Division that the sentencing court's imposition of consecutive sentences for these crimes does not violate Penal Law § 70.25 (2).
Defendant Juan Taveras, an assistant principal at a high school in Manhattan, sexually abused a number of students from June 2003 until July 2004. The pattern of conduct primarily involved defendant fondling several boys. He also performed oral sex on a 14-year-old student at his apartment. In an effort to induce the boys not to reveal these activities, defendant falsified the records of a summer youth employment program so that the boys were paid for work they did not perform.
Eventually, the boys disclosed defendant's sexual activities with them and a 134-count indictment was filed against defendant, charging him with eight felonies and 126 misdemeanors. Specifically, the felony charges consisted of one count of criminal sexual act in the third degree (predicated on the oral sex crime) and seven counts of falsifying business records in the first degree. The remaining misdemeanor counts included 33 counts of forcible touching and third-degree sexual abuse; four counts of endangering the welfare of a child; seven counts of attempted forcible touching and attempted third-degree sexual abuse; six counts of fourth-degree tampering with a witness and second-degree obstructing governmental administration; and 30 counts of second-degree falsifying business records. Defendant fled to the Dominican Republic but was involuntarily returned to the United States and charged with second-degree bail jumping in a separate indictment.
After plea negotiations, the People agreed to allow defendant to plead guilty to six felonies one count of criminal sexual act in the third degree (Penal Law § 130.40 ), four counts of falsifying business records in the first degree (Penal Law § 175.10) and the bail jumping charge (Penal Law § 215.56) and five misdemeanors (three counts of forcible touching [Penal Law § 130.52] and two counts of attempted forcible touching [Penal Law §§ 110.00, 130.52]). The plea agreement was based on the understanding that defendant would not be sentenced to a prison term exceeding 4 to 12 years.
Defendant thereafter pleaded guilty to the 11 agreed-upon counts in full satisfaction of both indictments. During his allocution, defendant admitted that he molested or attempted to molest five named students on various dates between June 2003 and July 2004 and that he engaged in oral sex with a sixth named student between January and July 2004. He further acknowledged falsifying the employment records of his victims on four separate occasions in July 2004 to "conceal" his sexual activity with the boys. Finally, defendant admitted that he had violated bail restrictions.
At sentencing, the court imposed an aggregate term of 4 to 12 years in prison. To accomplish this result, the court sentenced defendant to 1 1/3 to 4 years for each of the six felony convictions, running two of the sentences for the first-degree falsifying business records counts and the sentence on the third-degree criminal sexual act count consecutively to one another and concurrently to the remaining sentences. The court also issued orders of protection directing defendant to avoid contact with his victims.
Defendant appealed, arguing that the consecutive sentence for criminal sexual act in the third degree was illegal under Penal Law § 70.25 (2) and that his aggregate sentence should be reduced to 2 2/3 to 8 years. The Appellate Division modified to the extent of vacating both the assessment of a supplemental sex offender fee and certain provisions of the orders of protection, but otherwise affirmed (46 AD3d 399 ). A Judge of this Court granted defendant leave to appeal (10 NY3d 844 ).
The Penal Law provides that concurrent sentences are mandatory "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 ). Pursuant to this directive, we have recognized that consecutive sentences may not be imposed "(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 ). Under either prong of the statute, the People bear the burden of demonstrating the legality of consecutive sentences.
In resolving whether concurrent sentences are required, "the sentencing court must first examine the statutory definitions of the crimes for which defendant has been convicted" (id.). And in undertaking this review, we have observed:
"Because both prongs of Penal Law § 70.25 (2) refer to the 'act or omission,' that is, the 'actus reus' that constitutes the offense, the court must determine whether the actus reus element is, by definition, the same for both offenses (under the first prong of the statute), or if the actus reus for one offense is, by definition, a material element of the second offense (under the second prong). If it is neither, then the People have satisfied their obligation of showing that concurrent sentences are not required" (id. [internal citations omitted]).
Defendant concedes that the first prong of the statute is not applicable in this case, but maintains that the second prong bars consecutive sentencing for his third-degree criminal sexual act conviction. Relying on People v Catone (65 NY2d 1003 ), he contends that the offense of criminal sexual act in the third degree constitutes a material element of one of the consecutive first-degree falsifying business records counts because he falsified the relevant employment record with the intent to conceal the criminal sexual act*fn1. We disagree with his analysis.
In Catone, defendant struck and killed a girl in a pedestrian crosswalk, reduced his speed for a moment and then sped away. Following a jury trial, he was convicted of second-degree manslaughter and felony leaving the scene of an accident, and was sentenced to consecutive terms of imprisonment. On appeal, we held that concurrent sentences were required under Penal Law § 70.25 (2), reasoning that reckless manslaughter was a material element of leaving the scene of an accident without reporting because an ...