| People v Jackson |
| 2008 NY Slip Op 09236 [56 AD3d 1295] |
| November 21, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v PhillipJackson, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered July 8, 2005. The judgment convicted defendant, upon a jury verdict, of grand larcenyin the fourth degree, auto stripping in the second degree and criminal mischief in the fourthdegree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence and as modified the judgment is affirmed, and the matter is remitted toSupreme Court, Onondaga County, for resentencing.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of grandlarceny in the fourth degree (Penal Law § 155.30 [1]), auto stripping in the second degree(§ 165.10 [1]) and criminal mischief in the fourth degree (§ 145.00 [1]), defendantcontends that Supreme Court erred in directing that the sentences of incarceration on the grandlarceny and auto stripping counts shall run consecutively with respect to each other. We agree. Itis well settled that "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 theoffenses and a material element of the other" (People v Laureano, 87 NY2d 640, 643[1996]; see Penal Law § 70.25 [2]). "The defendant benefits if either prong ispresent, and the prosecution's burden is to countermand both prongs" (People v Day, 73NY2d 208, 211 [1989]). Here, the People failed to meet their burden of establishing that theconduct underlying the two counts in question involved separate acts. Pursuant to the indictmentand the jury charge, the People were required to establish with respect to grand larceny that, interalia, defendant stole property, here, stereo equipment, and with respect to auto stripping that,inter alia, "defendant removed or intentionally destroyed or defaced a part of a vehicle." The jurytherefore could have convicted defendant of the latter count upon finding that he removed thestereo equipment. Consequently, because the People failed to establish that "a single act [did not]constitute[] two offenses" (Laureano, 87 NY2d at 643), the court was without authority toimpose consecutive sentences (see People v Dean, 8 NY3d 929, 931 [2007]). Wetherefore modify the judgment by vacating the sentence, and we remit the matter to SupremeCourt for resentencing. Present—Hurlbutt, J.P., Martoche, Smith, Fahey and Peradotto, JJ.