The opinion of the court was delivered by: Read, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
On the evening of Friday, September 16, 2005, at the end of his workweek, William Smith played cards with Eric Lamotte, his friend of 15 years, and other friends and neighbors until the early morning hours of September 17, 2005. The card game took place out-of-doors, near the middle of Gates Avenue between Throop and Tompkins Avenues in Brooklyn, where Smith resided with his mother in a second-floor apartment. Lamotte was staying with the Smiths at the time. At about 4:30 A.M., a half-hour or so after Smith and Lamotte broke away from the card game, they were standing in front of the building where Smith lived when an acquaintance, Maurice Lingard, joined them. Seeing two men round the corner and advance on the three of them with guns in hand, Lamotte urged Smith, "Let's move, let's go upstairs."
The two gunmen -- Curtis Brown and defendant Ulysses McKnight -- fired what the police later determined to be a total of five nine-millimeter and five .45-caliber rounds in the direction of Lingard, the object of their rage. Lamotte fled upstairs to the roof of the building and escaped injury; Lingard, shot three times, followed close behind Lamotte and survived; but Smith, struck in the chest and left calf by bullets that lodged in his body, collapsed in the street and died in the hospital a few hours later.*fn1 Police officers arrived within minutes and spotted Brown and McKnight leaving the area. After a short pursuit, Brown was caught, while McKnight was not apprehended for several months. Neither of the guns used in the shooting was ever recovered.
McKnight was indicted and tried for various crimes as a result of this incident. A jury subsequently found him guilty of murder and attempted murder in the second degree (Penal Law §§ 125.25 ; 110.00), based on allegations that, acting in concert with Brown,*fn2 he intended and engaged in conduct to cause Lingard's death, and he caused Smith's death. Supreme Court sentenced McKnight to 25 years to life for the murder, and 25 years to life for the attempted murder, subsequently reduced to 20 years plus five years of postrelease supervision; and ordered the sentences to run consecutively for an aggregate prison term of 45 years to life.
McKnight appealed, protesting that Penal Law § 70.25 (2) mandated concurrent sentences for his convictions for attempted murder and murder. The Appellate Division rejected this claim without discussion (72 AD3d 846, 847 [2d Dept 2010]), citing People v Bonilla (57 AD3d 400 [1st Dept 2008] [Lippman, P. J.]) and People v Brathwaite (63 NY2d 839  [although defendant's two felony-murder convictions arose from a single transaction, an armed robbery, the separate acts of shooting each victim constituted the offenses and neither act was a material element of the others]).
In Bonilla, the defendant fired at least five shots during a neighborhood picnic on Labor Day in a New York City park, killing a 10-year-old girl standing near the intended victim, who survived. The defendant was convicted of both murder and attempted murder in the second degree, and the trial judge sentenced him to consecutive terms of 25 years to life imprisonment and 25 years, respectively, for an aggregate prison term of 50 years to life. The defendant -- like McKnight --argued that the shot that caused the death was part of a multiple-shot actus reus underlying attempted murder and, as a result, he was not eligible to be sentenced consecutively for attempted murder and transferred-intent murder.
The Appellate Division disagreed on the ground that the shot that killed the child and the shots that wounded the intended victim were "separate and distinct acts" even though "defendant's intent with respect to each act was to kill the surviving victim" (id. at 401). The court added that "[n]othing in the [trial judge's] instructions on transferred intent required concurrent sentences" (id. at 401-02).*fn3 The Appellate Division concluded likewise in this case. A Judge of this Court granted McKnight leave to appeal (15 NY3d 753 ), and we now affirm.
Section 70.25 of the Penal Law sets out the rules governing when a judge may or must impose a sentence of imprisonment concurrently or consecutively to another sentence imposed at the same time. As a general rule, a judge is authorized to direct that multiple sentences "shall run either concurrently or consecutively with respect to each other" (Penal Law § 70.25 ), except that "[w]hen more than one sentence of imprisonment is imposed on a person 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, the sentences . . . must run concurrently" (Penal Law § 70.25 ).
"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 ).
In deciding whether section 70.25 (2) mandates concurrent sentences, "the sentencing court must first examine the statutory definitions of the crimes for which defendant has been convicted" (id.). Based on the statutory definitions, the judge must then focus on the "act or omission" -- i.e., the actus reus -- that makes up each crime. The Penal Law defines an "act" as a "bodily movement" (Penal Law § 15.00 ), which we have interpreted to mean the actus reus or "wrongful deed that comprises the physical components of a crime and that generally must be coupled with the mens rea to establish criminal liability" (People v Rosas, 8 NY3d 493, 496 n 2  [citation omitted]; see also Laureano, 87 NY2d at 643).
If the act or omission is the same for both offenses (under the first prong of section 70.25 ), or if the act or omission that constitutes one offense is a material element of another offense (under the second prong of section 70.25 ), then consecutive sentences may not be imposed. Conversely, a judge possesses discretionary consecutive sentencing authority if neither circumstance exists. And even "[i]f the statutory elements do overlap under either prong of [section 70.25 (2)], the People may yet establish the legality of consecutive sentencing by showing that the 'acts and omissions' committed by defendant were separate and distinct acts" (Laureano, 87 NY2d at 643 [emphasis added]; see also People v Azaz, 10 NY3d 873, 875  ["'(T)rial courts retain consecutive sentence discretion when separate offenses are committed through separate acts, though they are part of a single transaction'" (quoting People v Brown, 80 NY2d 361, 364 )]; People v Ramirez, 89 NY2d 444,451  ["(C)onsecutive 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"]).
As relevant here, a person is guilty of murder in the second degree when "[w]ith intent to cause the death of another person, he causes the death of such person or a third person" (Penal Law § 125.25 ). A person is guilty of attempted murder in the second degree when "with intent to commit" that crime "he engages in conduct which tends to effect the commission of such crime" (Penal Law §§ 110.00; 125.25 ). The actus reus of the murder of Smith was the firing of the two shots that "cause[d] the death of . . . a third person [i.e., Smith]"; and the actus reus of the attempted murder of Lingard was the firing of the eight other shots, which either hit no one or hit Lingard and "tend[ed] to effect" his death. All ten shots were discharged with the intent to cause Lingard's death, but "'[t]he test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent'" (People v Frazier, __ NY3d __ at 5 [decided today] [quoting People v Day, 73 NY2d 208, 212 ). Thus, the actus reus of Smith's murder is not the same as the actus reus underlying Lingard's attempted murder under the first prong; and, under the second prong, the actus reus of Smith's murder is not a material element of the actus reus of Lingard's attempted murder because more than the two shots that struck Smith were fired at Lingard. If it were otherwise -- if the two shots that hit Smith were the only shots fired at Lingard -- we would agree that concurrent sentencing was mandated (see e.g. People v Battles __ NY3d __ at 5 [decided today] [consecutive terms of imprisonment were permissible for crimes committed against three victims who were individually doused with gasoline by defendant, but sentence imposed with respect to fourth victim, who was sprayed as a result of dousing of others, must run concurrently]).
McKnight argues that "the actus reus of each offense was the same [because] by relying on the transferred intent theory, the People implicitly concede that all [ten] shots were fired with the intent to kill Lingard." Further, "based on the court's charge, the prosecutor's summation, and the absence of other evidence of [McKnight's] intent, the jury likely concluded that the attempt was founded on all the fired shots," citing People v Parks (95 NY2d 811 ). Thus, he reasons, "[t]he shots that killed Smith . . . were part of the actus reus of the attempt." But even assuming that McKnight is correct and the actus rei for the two crimes overlapped, the People clearly established through the testimony of the ballistics expert and the medical examiner that two shots struck and killed Smith. These shots were the result of "separate and distinct acts" of pulling a trigger to discharge a firearm (see Laureano, 87 NY2d at 643). There is no authority to support the notion that where an actus reus consists of repetitive discrete acts, such as successive shots, that these acts somehow merge such that they lose their individual character where the same criminal intent (here, the intent to kill Lingard) "inspir[es] the whole transaction" (see Frazier, supra at 7).
And this is not a case like Parks, which stands for the proposition that when more than one felony could be the predicate of a felony murder conviction, the jury's verdict must establish which felony, in fact, serves as the predicate because otherwise it would be "impossible to tell which [felony] is a separate and distinct act from the felony murder" so as to justify consecutive sentencing (id. at 815). There is no question here that the jury convicted McKnight of murder because of the two shots that hit Smith. Further, this case ...