The opinion of the court was delivered by: Pigott, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
One person was burned to death and three others severely burned as a result of defendant's pouring gasoline over several individuals and setting a fire. The primary issue before us is whether, under the facts of this case, following defendant's conviction, the court's sentencing of defendant to consecutive terms of imprisonment was proper. A review of the evidence presented at trial is necessary.
On July 8, 2004 and into the early next morning, several people, including Gregory Davis, Ronald Davis, and Stephen Wheeler, were at Arthur Elliott's apartment, a known crack cocaine den. Defendant Calvin Battles arrived, and at some point got into an argument with Ronald Davis. Defendant left, but later returned, threatening to burn the place. Then using a gasoline can that had been retrieved from his truck, defendant, lighter in hand, began splashing gasoline throughout the apartment. Defendant pushed Ronald Davis to the floor and doused him with gasoline. He then poured gasoline over Gregory Davis's head. After exchanging words with Elliott, defendant threw gasoline on him as well.
As defendant attempted to ignite the lighter, Elliott pushed defendant, who was in the doorway, out of the apartment. Defendant and Elliott scuffled and a fire broke out. The lower part of Elliott's body burst into flames as he fell back into the apartment, igniting the entire living room. As a result, Ronald Davis was burned to death and Gregory Davis, Stephen Wheeler and Arthur Elliott sustained severe burns.
After a jury trial, defendant was convicted of depraved indifference murder (Penal Law § 125.25 ), second-degree manslaughter (Penal Law § 125.15 ), and three counts of depraved indifference assault (Penal Law § 120.10 ). He was sentenced as a persistent felony offender to concurrent sentences of 25 years to life on the depraved indifference murder and manslaughter convictions, to be followed by consecutive terms of 25 years to life on the depraved indifference assault convictions related to Gregory Davis and Wheeler, and a consecutive term of 20 years to life on the depraved indifference assault conviction related to Elliott, for an aggregate sentence of 95 years to life.
Defendant appealed, asserting, among other claims, that the imposition of consecutive sentences was illegal because the victims were all burned in a fire that had a single source of ignition, and that his sentencing as a persistent felony offender was unconstitutional under Apprendi v New Jersey (530 US 466 ).
The Appellate Division modified the judgment by vacating the conviction of second-degree manslaughter (see Penal Law § 125.15 ) and the sentence imposed thereon, and otherwise affirmed (65 AD3d 1161 [2d Dept 2009]). As relevant to this appeal, the court held that defendant's Apprendi claim was unpreserved and without merit (id. at 1162). The court further rejected, without discussion, defendant's consecutive sentencing claim as without merit (id.).
A Judge of this Court granted leave to appeal and we now modify.
Defendant contends that the consecutive sentences for the depraved indifference murder and depraved indifference assault counts are illegal under Penal Law § 70.25 (2) because those crimes shared a common actus reus -- defendant's single act of starting the fire.
Penal Law § 70.25 requires that concurrent sentences 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 ). To determine whether consecutive sentences are permitted, a court must first look to the statutory definitions of the crimes at issue (People v Frazier, __NY3d__ [decided today]).
Here, the inquiry begins with the depraved indifference murder statute, which requires proof that "under circumstances evincing a depraved indifference to human life, [the defendant] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person" (Penal Law § 125.25 ). The statutory definition of depraved indifference assault (Penal Law § 120.10 ) differs from that of depraved indifference murder only in the result created by defendant's conduct; serious physical injury to another.
The imposition of consecutive sentences was permissible in this case with respect to Ronald Davis, Gregory Davis and Elliott because separate acts constituted the actus reus of each of the depraved indifference crimes against those victims. Specifically, the trial judge instructed the jurors that they could find defendant acted with depraved indifference to human life irrespective of whether they were to find that defendant was the one who ignited the fire. Defendant's acts of soaking each victim with gasoline in a room where other people were present, and where one of them (Elliott) was smoking a lit cigarette, was so inherently dangerous to each victim that defendant was found guilty of depraved indifference murder and depraved indifference assault based on those acts alone. A determination of the cause of the ignition of the fire was unnecessary to the determination of defendant's guilt with respect to those depraved indifference counts, and thus, defendant's argument that the actus reus for all of those crimes was the ignition of the fire fails. Because defendant engaged in conduct which created a grave risk of death or serious physical injury to each of those victims, by separate and distinct acts of dousing them with gasoline, imposition of consecutive sentences was authorized under the Penal Law.
We conclude, however, that the sentence imposed pertaining to Wheeler must run concurrent to the other sentences. Wheeler was never doused with gasoline, but rather, was sprayed as a result of the dousing of the others. Thus, the risk-creating conduct for his conviction was the same act as that of the others and running his sentence concurrently is required.
Defendant's challenge to the constitutionality of his sentencing as a persistent felony offender and other claims raised in his pro se brief are without merit (see People v Quinones, 12 NY3d 116 ; see also People v Bell, __ NY3d __ [decided today]).
Accordingly, the order of the Appellate Division should be modified and the case remitted to Supreme Court for further proceedings in accordance with this opinion and, as so modified, affirmed.
LIPPMAN, Chief Judge(dissenting in part):
Although at common law the right to a jury determination of all facts essential to punishment was jealously guarded (see e.g. People ex rel. Cosgriff v Craig, 195 NY 190 ), more recent history in this and many other states has witnessed judicial acquiescence in legislative initiatives that effectively resituate factfinding power necessary to the justification of punishment from the jury to judges. This transfer has been effected most frequently by statutes permitting the enhancement of otherwise prescribed sentences based on judicial findings, often by a mere preponderance, respecting a defendant's criminal history, the circumstances of the offense before the court, and what the statutorily relevant findings collectively portend respecting the risk posed by the defendant's eventual reintroduction to society. It was widely believed that these kinds of findings fell comfortably within the discretionary power judges have traditionally exercised in sentencing criminal ...