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Offense dictates the sentencing


The criminal defendant appealed from his convictions of first-degree murder and second-degree criminal possession of a weapon. According to the defendant, the court erred in imposing upon him consecutive sentences because he acted with singular intent during one criminal transaction. However, recent Court of Appeals decisions reiterate that the test for determining the legality of consecutive sentences is not whether the criminal intent is one and the same in each crime but whether separate acts have been committed with the requisite criminal intent. Thus, since there was no overlap of statutory elements in the crimes committed by the defendant, the imposition of consecutive sentences was lawful.

The actus reus of the first-degree murder statute is the causing of death of two or more persons with no requirement that it be by shooting, stabbing or any other method employing a weapon, and the actus reus of second-degree criminal weapon possession is possession of a loaded operable firearm with no requirement that, in fact, it be employed in any way, much less lethally. Hence, these are separate and distinct acts.

Since for sentencing purposes a court must focus on the statutory definition of an offense, there is no merit in the defendant’s argument that the People, at trial, intertwined defendant’s intent to use his weapon unlawfully with the fatal shootings of the two victims. It is true that the People, in summation, stated that the defendant possessed a gun and intended to use that gun unlawfully and there’s no doubt about the defendant’s intent since he actually did use the gun unlawfully against two others. However, that does not help the defendant for sentencing purposes. Indeed, the defendant’s argument that the intent component of the weapon-possession charge results in a statutory overlap because the People did not establish an intent separate from the intentional, fatal shootings is precisely the rationale that the Court of Appeals rejected in one case, and most recently in another. In the first case, the Court rejected the argument that a criminal sex act (sodomy) constituted a material element of first-degree falsifying of business records where defendant asserted that the statutory definition of the latter offense included intent to conceal a crime, in this case the sodomy. Similarly, in the other case, the defendant argued that sentences imposed for his burglary and larceny convictions should run concurrently because larceny was the crime that satisfied burglary’s intent requirement. The Court agreed that defendant’s larceny was the only crime that fulfilled the “intent to commit a crime” element of burglary, and that, therefore the two acts, the entering of a dwelling for the sole purpose of stealing, and the actual taking of the property, cannot logically be considered separate and distinct acts. On appeal, the Court of Appeals disagreed. In a particularly instructive ruling, it held, instead, that the crime of burglary was completed when defendant entered each apartment with the intent to commit a crime. The ensuing larceny was a separate crime, perpetrated through defendant’s separate act of stealing property. The holding in the latter case would appear to foreclose the argument that the shootings of the victims were the only crimes that satisfy the intent-to-use-unlawfully element of the weapon possession charge and hence they are not separate and distinct acts. The criminal weapon possession offense is a possessory act, the actus reus of which is complete once the defendant has dominion and control of a weapon. Criminal weapon possession is not a necessary component of first-degree murder.

Consequently, the court declined to reduce the sentences in the interest of justice.

In sum, the judgment of the Supreme Court of New York County convicting defendant, after a jury trial, of murder in the first degree and criminal possession of a weapon in the second degree, and sentencing him to consecutive terms of 25 years to life and 15 years, respectively, was affirmed.

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