| People v Holmes |
| 2012 NY Slip Op 01617 [92 AD3d 957] |
| February 28, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LouisHolmes, Also Known as Shabaka Shakur, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County(Holdman, J.), entered December 24, 2008, which denied, without a hearing, his motion pursuantto CPL 440.20 to set aside so much of his sentence as imposed consecutive terms ofimprisonment upon his two convictions of murder in the second degree.
Ordered that the order is affirmed.
The Supreme Court properly denied the defendant's motion pursuant to CPL 440.20 to setaside so much of his sentence as imposed consecutive terms of imprisonment upon his twoconvictions of murder in the second degree (see Penal Law § 125.25 [1]). Thechallenged consecutive sentences were imposed pursuant to the statutory sentencing scheme thatrequires concurrent sentences to be imposed "[w]hen more than one sentence of imprisonment isimposed on a person for two or more offenses committed through a single act or omission, orthrough an act or omission which in itself constituted one of the offenses and also was a materialelement of the other" (Penal Law § 70.25 [2]), but allows for judicial discretion to imposeconsecutive sentences where " 'the "acts or omissions" committed by defendant were separate anddistinct acts' " (People v Frazier, 16NY3d 36, 41 [2010], quoting People v Laureano, 87 NY2d 640, 643 [1996]; see People v Battles, 16 NY3d 54,58 [2010], cert denied 565 US —, 132 S Ct 123 [2011]; People v McKnight, 16 NY3d 43,48 [2010]; People v Mannino, 89AD3d 1105, 1105 [2011]).
Here, although the two victims' deaths "may be said to have occurred in the course of a singleextended transaction," contrary to the defendant's contention, there was no evidence that a singleshot killed both victims (People v Brathwaite, 63 NY2d 839, 843 [1984]; see Peoplev Garcia, 303 AD2d 600 [2003]; People v Grimes, 277 AD2d 945 [2000]). Since theevidence supported the sentencing court's conclusion that the two victims were killed by separatebullets and, thus, that there were separate and distinct acts involved, the motion court correctlyconcluded that the imposition of consecutive sentences was not illegal (see People v McKnight, 16 NY3d43 [2010]; People v Jones, 41AD3d 507, 509 [2007]).[*2]
The defendant's contention that New York's sentencingscheme with respect to the imposition of consecutive sentences was rendered unconstitutional byApprendi v New Jersey (530 US 466 [2000]) and its progeny (see e.g. Blakely vWashington, 542 US 296 [2004]) is without merit (see Oregon v Ice, 555 US 160,164 [2009]; People v Mannino, 89 AD3d at 1106; People v Bridges, 63 AD3d 752, 753 [2009]; People v Cruz, 46 AD3d 567, 568[2007]; People v Azaz, 41 AD3d610, 611-612 [2007], affd 10 NY3d 873 [2008]). Balkin, J.P., Dickerson, Belen andCohen, JJ., concur.