| People v Jones |
| 2014 NY Slip Op 08267 [122 AD3d 1161] |
| November 26, 2014 |
| Appellate Division, Third Department |
[*1](November 26, 2014)
| The People of the State of New York, Respondent, vBryan Jones, Appellant. |
Eric K. Schillinger, East Greenbush, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered May 10, 2012, convicting defendant upon his plea of guilty of the crime ofassault in the second degree (two counts).
Defendant and two codefendants planned to scare certain individuals by dischargingfirearms near their home in the City of Kingston, Ulster County. On July 11, 2011 whileit was dark, defendant shot a rifle into the air and one of the codefendants fired ashotgun. Two individuals standing outside the residence were struck by birdshotdischarged from the shotgun and were seriously injured. As a result, defendant, alongwith his codefendants, was charged in an indictment with multiple crimes. In satisfactionof the charges, defendant pleaded guilty to two counts of assault in the second degree. Inaccordance with the plea agreement, he was sentenced as a second felony offender to twoconsecutive terms of seven years in prison, followed by five years of postreleasesupervision on each count. He now appeals.
Defendant contends that County Court illegally imposed consecutive sentencesbecause the crimes to which he pleaded guilty arose from a single act, that being thefiring of the shotgun which discharged the birdshot that struck the two victims. ThePeople concede that the sentence is illegal for this reason and we agree. Penal Law§ 70.25 (2) provides, in relevant part, that "[w]hen more than one sentenceof imprisonment is imposed on a person for two or more offenses committed through asingle act or omission . . . the sentences . . . must runconcurrently" (see generally People v Laureano, 87 NY2d 640, 643-644 [1996]).Here, the evidence presented indicates that both victims were injured by the birdshotdischarged by one shot of the shotgun fired by a codefendant. Defendant's assaultconvictions arose from [*2]this single act (see Peoplev McFadden, 180 AD2d 825, 827 [1992], lv denied 79 NY2d 1004 [1992];People v Luster, 148 AD2d 305, 306 [1989], lv denied 74 NY2d 666[1989]; compare People v Brathwaite, 63 NY2d 839, 843 [1984]).[FN*] Consequently, theconsecutive sentences are illegal and must be modified.
Lahtinen, J.P., Stein, McCarthy, Rose and Egan Jr., JJ., concur. Ordered that thejudgment is modified, on the law, by directing that defendant's sentences shall runconcurrently rather than consecutively, and, as so modified, affirmed.
Footnote *:We note that this Courtupheld consecutive sentences imposed upon one codefendant, inasmuch as his allocutionincluded an admission that multiple shots were fired from the shotgun and, unlike here,no proof was presented that the victims were injured by the same shot (see People v Moon, 119 AD3d1293 [2014], lv denied 24 NY3d — [Oct. 29, 2014]).