The records reveal that the accused moves before the Court, pursuant to Criminal Procedure Law, section 440.20, in order to vacate the sentences imposed upon him pursuant to an Indictment. It appears that after having been found Guilty by a jury of the Crimes of Burglary in the Third Degree and Grand Larceny in the First Degree, he was sentenced to an indeterminate term of imprisonment for a maximum of ten years and a minimum of five years under each count, said sentences to be served consecutively. The accused asserts that these sentences are violative of former Penal Law Section 1938 which precludes double punishment for a single act, although 'made criminal and punishable in different ways, by different provisions of law.'
In support of the foregoing contention, the accused alludes to People v. Savarese, which involved a kidnapping and a robbery. A Judge held that if all the acts performed were Necessary or Incidental to the commission of a single crime and were motivated by an intent to commit that crime, Then even if another separate crime be committed or another statute also be violated, he may not be doubly punished. If, however, any of the acts were not necessary to or incidental to the commission of the crime intended and those acts result in the commission of a separate crime, then he may be punished for each crime. Applying this rule, the Judge found that kidnapping a truck driver and his assistant while their truck was being hijacked was necessary and incidental to the robbery; therefore, though properly convicted of both kidnapping and robbery; the accused could not be punished for both crimes.
Court ruled that Section 1938 of the Former Penal Law provides, in part, as follows: 'An act or omission which is made criminal and punishable in different ways, by different provisions of law, may be punished under any one of those provisions, but not under more than one'.
The leading case interpreting this Section is People ex rel. Maurer v. Jackson. There, the Court of Appeals, at pages 264 and 265, stated: 'It is clear that if separate and distinct acts were committed, and that they violated more than one section of the Penal Law, punishment for each of them would be proper although they arose out of a single transaction. It is also not open to dispute that if there were merely a single inseparable act violative of more than one statute, or if there were an act which itself violated one statute and was a material element of the violation of another, there would have to be single punishment. We recognize that Section 1938 is not by its terms limited to included crimes although it is clear that the statute will there apply; If, however, the acts are separable, it will not apply.'
To Be Cont...