Kathryn Friedman, for appellant.
Christopher T. Valdina, for respondent.
appeal, we are asked to determine whether consecutive
sentences were authorized under Penal Law § 70.25 (2)
for defendant's burglary and intentional murder
convictions. Inasmuch as the People identified evidence in
the record to support their view that the crimes were
committed through separate and distinct acts, consecutive
sentences were permissible.
was charged in an indictment with numerous crimes, including
two counts of murder in the second degree and two counts of
burglary in the first degree, after he killed his former
girlfriend in her home by stabbing her with a butcher knife.
At the ensuing nonjury trial, defendant stipulated in writing
that he "caused the death of" the victim "by
stabbing her with a knife, " but proffered an
affirmative defense of extreme emotional disturbance.
Defendant's uncle testified that defendant appeared at
the uncle's home at approximately 1:00 a.m. on the night
of the murder. Defendant was covered in blood, asked that his
mother be called to pick up his son, and stated that he had
stabbed and killed the victim. The uncle called the police.
At the station, defendant made statements to police that he
had killed the victim; he was subsequently recorded on a
telephone call with his mother, admitting that he went to the
victim's apartment, "dragged her down the stairs and
responding to the victim's apartment determined that
defendant had gained entrance by smashing a window and
tearing a screen. They observed signs of a struggle in the
upstairs master bedroom, as well as a small smear of blood on
a wall outside the bedroom, a smear of blood on a half wall
at the top of the staircase landing, and a few drops of blood
on the floor upstairs and on the stairs. Testing later
revealed this to be the victim's blood. The victim was
found downstairs, on the floor of her living room, with a
knife sticking out of her chest. The photographs depicting
her body and wounds corroborate the police testimony at trial
that there were large quantities of blood in the living room,
including next to the victim's body.
Chief Medical Examiner testified that he found 38 slash or
stab wounds on the victim's body, all of which were
consistent with the murder weapon. He explained that several
of the wounds, individually, could have been fatal -
specifically, those that penetrated the chest cavity, caused
lung collapse, injured the heart, sliced a major vein in the
neck and penetrated the liver - but did not identify a
particular wound that clearly caused death immediately.
relevant here, defendant was found guilty of intentional
murder, as well as two counts of burglary in the first
degree, based on (1) causing physical injury and (2) using or
threatening to use a dangerous instrument. At sentencing, the
People argued that consecutive sentences were appropriate
because the evidence showed that defendant pulled the victim
out of bed and inflicted minor injuries on her while she was
upstairs, before dragging her down the stairs and inflicting
mortal wounds in the living room. Defendant argued that
consecutive sentences were not permissible because the crimes
were part of a continuing course of criminal conduct that was
formulated, according to the People, before he entered the
victim's apartment. The court, upon resentencing,
sentenced defendant to a term of imprisonment of 54 years to
life, with the concurrent sentences on the two burglary
convictions imposed consecutively to his sentence on the
intentional murder conviction.
defendant's appeals from the judgment of conviction and
resentence, the Appellate Division affirmed, with two
Justices dissenting (126 A.D.3d 1286');">126 A.D.3d 1286 [4th Dept 2015]). While
stating that "the actus reus elements of the burglary
counts and the murder count overlap under the facts presented
here, " the court "nevertheless conclude[d] that
the People 'establish[ed] the legality of consecutive
sentencing by showing that the acts or omissions'
committed by defendant were separate and distinct acts"
(id. at 1289, quoting People v Laureano, 87
N.Y.2d 640, 643 ). In contrast, the dissenting Justices
concluded that "the People failed to meet their burden
of establishing that the burglary and murder offenses were
committed by separate and distinct acts, " based upon
their view that "it is possible" that the wound or
wounds that the victim sustained while upstairs may have
ultimately caused her death (id. at 1291-1292). One
of the dissenting Justices granted defendant leave to appeal.
Law § 70.25 authorizes a trial judge to direct that
sentences run either concurrently or consecutively except
"[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 ). In other words, under section
70.25 (2), "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 ...