| People v Grant |
| 2014 NY Slip Op 08859 [123 AD3d 942] |
| December 17, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Edwin Grant, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Warren S. Landau of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andHoward B. Goodman of counsel), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Kings County (DelGiudice, J.), imposed September 24, 2012, upon his convictions of attempted murder inthe second degree, attempted aggravated assault upon a police officer, attempted robberyin the first degree, and criminal possession of a weapon in the second degree, upon a juryverdict, the resentence being determinate terms of imprisonment of 25 years to befollowed by five years of postrelease supervision upon his conviction of attemptedmurder in the second degree, 15 years to be followed by five years of postreleasesupervision upon his conviction of attempted robbery in the first degree, 15 years to befollowed by five years of postrelease supervision upon his conviction of attemptedaggravated assault upon a police officer, and 15 years to be followed by five years ofpostrelease supervision upon his conviction of criminal possession of a weapon in thesecond degree, with the terms of imprisonment imposed upon the convictions ofattempted murder in the second degree, attempted aggravated assault upon a policeofficer, and attempted robbery in the first degree to run consecutively to each other andconcurrently with the term of imprisonment imposed upon the conviction of criminalpossession of a weapon in the second degree.
Ordered that the resentence is modified, on the law, by providing that the terms ofimprisonment imposed upon the convictions of attempted murder in the second degreeand attempted robbery in the first degree are to run concurrently with each other; as somodified, the resentence is affirmed.
On the afternoon of May 10, 2006, the defendant and a codefendant attempted agunpoint robbery of Dennis Moore on a residential street in Crown Heights, Brooklyn.As Moore exited a van, the defendant and codefendant displayed handguns anddemanded his money. When Moore refused, the defendant and codefendantpistol-whipped and shot him three times. An off-duty detective, Larry Young, observedthe attempted robbery and intervened. Young displayed his shield and ordered thedefendant and codefendant to stop. The defendant and codefendant shot at Young, andYoung returned fire, striking the defendant, who then fled the scene. For his acts againstMoore, the defendant was convicted of attempted murder in the second degree (PenalLaw §§ 110.00, 125.25 [1]) and attempted robbery in the first degree(Penal Law §§ 110.00, 160.15 [2]), and for his acts against Young, hewas convicted of attempted aggravated assault upon a police officer.
[*2] On appeal, the defendant contends that the SupremeCourt erred in imposing consecutive terms of imprisonment on his convictions ofattempted murder in the second degree and attempted robbery in the first degree relatingto the victim Moore. We agree. Penal Law § 70.25 (2) provides thatconcurrent sentences must be imposed "for two or more offenses committed through asingle 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." "Thus, sentences [ofimprisonment] imposed for two or more offenses may not run consecutively: (1) where asingle 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]). However, "trial courts retain consecutive sentence discretion when separateoffenses are committed through separate acts, though they are part of a singletransaction" (People v Brown, 80 NY2d 361, 364 [1992]; see People v Azaz, 10 NY3d873, 875 [2008]).
Here, consecutive sentences may not be imposed because the act which constitutedthe offense of attempted murder in the second degree was a material element of theoffense of attempted robbery in the first degree. A person is guilty of attempted murderin the second degree when, with intent to commit murder, he or she engages in conductwhich tends to cause the death of another person (see Penal Law§§ 110.00, 125.25 [1]). A person is guilty of attempted robbery in thefirst degree, under the Penal Law section charged here, when he or she attempts toforcibly steal property and is armed with a deadly weapon (see Penal Law§ 160.15 [2]). A person forcibly steals when he or she, in the course ofcommitting a larceny, uses or threatens the immediate use of physical force to prevent orovercome resistance to the taking of the property or to compel the owner to deliver theproperty (see Penal Law § 160.00 [1], [2]). Here, the actus reus ofthe attempted murder charge was the firing of three shots at Moore, and the actus reus ofthe attempted robbery charge was the use or threatened use of physical force to attempt tosteal property while armed with a deadly weapon. The act which constitutes attemptedmurder in the second degree is subsumed within the element of using force. Thus, the actconstituting attempted murder in the second degree can be a material element ofattempted robbery in the first degree (cf. People v Laureano, 87 NY2d at 644[holding that the act which constitutes manslaughter in the first degree is subsumedwithin the element of causing serious physical injury for robbery in the first degree underPenal Law § 160.15 (1)]).
In addition, the People have failed to establish that the acts constituting the attemptedrobbery in the first degree were separate and distinct from the acts constituting theattempted murder in the second degree (see id. at 644-645; People vBrown, 80 NY2d at 364). Here, consecutive sentences could not be imposed becauseit is impossible to determine whether the firing of three gun shots at Moore, whichformed the basis of the verdict of guilt on the attempted murder charge, was also the useof force which formed the basis of the jury's verdict of guilt on the attempted robberycharge (see People v Alford,14 NY3d 846 [2010]; People v Parks, 95 NY2d 811 [2000]; cf. People v Frederick, 14NY3d 913 [2010]; People vRodriguez, 79 AD3d 644 [2010], affd 18 NY3d 667 [2012]). Therefore,the People have failed to establish that the acts constituting attempted robbery in the firstdegree were separate and distinct from those constituting attempted murder in the seconddegree. Accordingly, we modify the resentence to provide that the terms of imprisonmentimposed upon those convictions are to run concurrently.
The defendant's remaining contention is without merit. Dickerson, J.P., Leventhal,Sgroi and LaSalle, JJ., concur.