| People v Frazier |
| 2009 NY Slip Op 00099 [58 AD3d 468] |
| January 13, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Charles Frazier, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Eleanor J. Ostrow of counsel), forrespondent.
Judgment, Supreme Court, New York County (Rena K. Uviller, J., at competency hearing;Charles J. Tejada, J., at jury trial and sentence), rendered April 10, 2007, convicting defendant ofburglary in the second degree (three counts), grand larceny in the third degree (two counts) andbail jumping in the second degree, and sentencing him, as a persistent violent felony offender, toconcurrent terms of 16 years to life for the burglary convictions consecutive to concurrent termsof 2 to 4 years for the larceny convictions and consecutive to a term of 2 to 4 years for the bailjumping conviction, unanimously modified, on the law, to the extent of directing that thesentences for the larceny convictions be served concurrently with the sentences for the burglaryconvictions, and otherwise affirmed.
The hearing court properly found that the People had established, by a preponderance of theevidence, that defendant was competent to stand trial (see People v Mendez, 1 NY3d 15, 19-20 [2003]; see also Patev Robinson, 383 US 375 [1966]). There is no basis for disturbing the court's evaluation ofexpert testimony (see People v McMillan, 212 AD2d 445 [1995], lv denied 85NY2d 976 [1995]). The evidence at the hearing established that defendant's psychiatric illnessdid not prevent him from understanding the legal process or assisting his attorney in his defense.
The court's Sandoval ruling balanced the appropriate factors and was a properexercise of discretion (see People v Hayes, 97 NY2d 203 [2002]; People vWalker, 83 NY2d 455, 458-459 [1994]).
The procedure under which defendant was sentenced as a persistent violent felony offenderwas not unconstitutional (see Almendarez-Torres v United States, 523 US 224 [1998];People v Leon, 10 NY3d 122,126 [2008], cert denied 554 US —, 128 S Ct 2976 [2008]).
The sentencing court erred in imposing consecutive sentences for the burglary and larcenyconvictions. Concurrent sentences must be imposed "for two or more offenses committedthrough a single act or omission, or through an act or omission which in itself constituted one ofthe offenses and also was a material element of the other" (Penal Law § 70.25 [2]; seealso [*2]People v Laureano, 87 NY2d 640, 642 [1996]). Ineach of the incidents at issue, the evidence established that larceny was the only intended crimethat satisfied the "intent to commit a crime" element of burglary (Penal Law § 140.25).Thus, in each incident, the two acts—the entering of a dwelling for the sole purpose ofstealing, and the actual taking of the property—cannot logically be considered separateand distinct acts. Concur—Andrias, J.P., Nardelli, Moskowitz, Renwick and Freedman, JJ.