| People v Redden |
| 2020 NY Slip Op 02502 [182 AD3d 926] |
| April 30, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Bryan Redden, Appellant. |
Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), forappellant.
Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered March 8, 2018, convicting defendant upon his plea of guilty of the crimes ofmurder in the first degree (two counts), murder in the second degree (two counts),criminal possession of a weapon in the fourth degree, grand larceny in the third degree,grand larceny in the fourth degree and tampering with physical evidence.
Defendant was indicted and charged with murder in the first degree (two counts),murder in the second degree (two counts), criminal possession of a weapon in the fourthdegree, grand larceny in the third degree, grand larceny in the fourth degree andtampering with physical evidence. The charges stemmed from an incident that occurredin August 2017, during the course of which defendant, while visiting the victims' home,killed a mother and her four-year-old child. As he spoke with the mother in the kitchen,defendant, who was "coming down" from being high on cocaine, "got . . .some kind of way" and "snapped," whereupon he grabbed the mother, with whom he wascasually acquainted, strangled her, stabbed her twice in the chest and slit her throat. Thechild, who defendant did not realize was at home, then poked her head around the cornerof the kitchen, at which point defendant pursued the child, "snatched her up," strangledher and slit her throat in the living room of the home. Defendant removed numerousitems of value from the home and fled the scene in the mother's vehicle before stoppingto dispose of the knife and other items in a dumpster behind a local gas station.
Defendant was apprehended shortly thereafter, made a full confession andsubsequently agreed to plead guilty to the entire indictment with the understanding thatCounty Court was inclined to impose an aggregate prison term of 44 years tolife—subject to the arguments of counsel at the time of sentencing. County Courtultimately imposed the contemplated prison term and sentenced defendant to 22 years tolife upon his convictions of murder in the first degree (counts 1 and 2 of the indictment),22 years to life upon his convictions of murder in the second degree (counts 3 and 4 ofthe indictment) and to lesser periods of imprisonment upon defendant's remainingconvictions. All sentences were ordered to run concurrently with each other except forthe terms of imprisonment imposed under counts 3 and 4 of the indictment, which wereto run consecutively to one another and concurrently with the terms imposed upon theremaining convictions. Defendant appeals, arguing that the sentence imposed is bothillegal and harsh and excessive.
As to the legality of the sentence imposed, defendant argues that counts 3 and 4 ofthe indictment charging murder in the second degree (see Penal Law§ 125.25 [1]) (intentional murder) are inclusory concurrent counts of counts1 and 2 of the indictment charging murder in the first degree (see Penal Law§ 125.27 [1] [a] [viii]) (intentional murder of more than one person). Theargument continues that counts 3 and 4 should have been dismissed at the outset, and theconsecutive terms of imprisonment imposed thereon are illegal.[FN*]
We disagree. CPL 300.40 (3) (b) provides, with respect to inclusory concurrentcounts, that "[a] verdict of guilty upon the greatest count submitted is deemed a dismissalof every lesser count submitted" (accord People v Cobb, 145 AD3d 738, 739 [2016], lvdenied 29 NY3d 947 [2017]). Even assuming, without deciding, that counts 3 and 4of the indictment indeed are inclusory concurrent counts of counts 1 and 2, defendant'sreliance upon both the statute and the cases applying it (see e.g. People v Grier,37 NY2d 847 [1975]; People vWager, 173 AD3d 1352 [2019], lv denied 34 NY3d 1020 [2019];People v Bailey, 295 AD2d 632 [2002], lv denied 98 NY2d 766 [2002])is misplaced, as CPL article 300 " 'deals only with trials, and has no applicationto convictions obtained on a plea of guilty' " (People v Cobb, 145 AD3dat 739 [brackets omitted], quoting People v Walton, 41 NY2d 880, 880-881[1977]; see People v Dean, 302 AD2d 951, 952 [2003]; see also People vMahy, 305 AD2d 856, 857 [2003], lv denied 100 NY2d 622 [2003]). Havingelected to plead guilty to the entire indictment, as was defendant's right (see CPL220.10 [2]), he cannot now avail himself of the provisions of CPL 300.40 (3) (b) (seePeople v Cobb, 145 AD3d at 739). Accordingly, dismissal of counts 3 and 4 of theindictment is not warranted.
With respect to defendant's claim that the consecutive sentences imposed were notauthorized, both the sentencing minutes and the sentence and commitment form reflectthat the various terms of imprisonment imposed by County Court all ran concurrentlywith one another except for the sentences imposed upon defendant's convictions ofmurder in the second degree under counts 3 and 4 of the indictment, which ranconsecutively to each other and concurrently with the sentences imposed uponthe remaining convictions. Penal Law § 70.25 governs a sentencing court'sauthority to impose consecutive sentences (see People v Brahney, 29 NY3d 10, 14 [2017]; People vLaureano, 87 NY2d 640, 643 [1996]; People v Mangarillo, 152 AD3d 1061, 1062 [2017]) and, assummarized by the Court of Appeals, "consecutive sentences may be imposed wheneither the elements of the crimes do not overlap or if the facts demonstrate that thedefendant's acts underlying the crimes are separate and distinct; conversely, where theactus reus is a single inseparable act that violates more than one statute, a singlepunishment must be imposed" (People v Brahney, 29 NY3d at 15 [internalquotation marks, brackets and citations omitted]; see People v McKnight, 16 NY3d 43, 48 [2010]). Where,as here, a defendant pleads guilty to two counts in an indictment, the People may"demonstrate that the acts underlying the crimes [are] separate and distinct only byreference to the factual allegations in the [indictment] and the facts admitted during the[plea] allocution" (People v Mangarillo, 152 AD3d at 1062; see People vLaureano, 87 NY2d at 644).
Here, defendant's statements during the plea colloquy clearly reflect that his murderof the mother and her child involved separate and distinct acts—even though suchacts were part of the same criminal transaction (see People v Azaz, 10 NY3d 873, 875 [2008]). Defendant,by his own admission, strangled, stabbed and slit the mother's throat as she stood in herkitchen; the child appeared shortly after defendant's attack upon the mother wascompleted, at which point defendant gave chase and brutally attacked and killed the childon the floor of the living room. Under these circumstances, we have no quarrel withCounty Court's decision to impose consecutive sentences upon the convictions undercounts 3 and 4 of the indictment. Finally, although defendant further argues that theoverall sentence imposed is harsh and excessive, we find no extraordinary circumstancesor abuse of discretion warranting modification of the sentence in the interest of justice.Accordingly, the judgment of conviction is affirmed.
Garry, P.J., Egan Jr., Lynch and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.
Footnote *:Defendant's challenge tothe legality of the consecutive sentences imposed survives his guilty plea and is notsubject to the preservation requirement (see People v Mower, 97 NY2d 239, 244[2002]; People v Laureano, 87 NY2d 640, 643 [1996]; People v Mangarillo, 152AD3d 1061, 1061-1062 [2017]).