| People v Couser |
| 2015 NY Slip Op 02375 [126 AD3d 1419] |
| March 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vPhillip Couser, Appellant. (Appeal No. 1.) |
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Dennis M. Kehoe,A.J.), rendered April 8, 2010. The judgment convicted defendant, upon a jury verdict, ofrobbery in the first degree, criminal possession of a weapon in the second degree (twocounts), attempted robbery in the first degree (three counts) and criminal possession of aweapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by directing that the sentences imposed on the fifth through seventh counts runconcurrently with each other and consecutively to the sentence imposed on the secondcount, and as modified the judgment is affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon a jury verdict of, inter alia, robbery in the first degree (Penal Law§ 160.15 [4]) and three counts of attempted robbery in the first degree(§§ 110.00, 160.15 [4]). In appeal No. 2, defendant appeals from ajudgment convicting him upon his Alford plea of attempted murder in the firstdegree (§§ 110.00, 125.27 [1] [a] [vii]). The charges arose fromdefendant's display of a gun and threats to a group of five people in a park, the theft of apurse from a female victim in the group, the firing of a shot from that gun, which grazedthe head of a male victim in the group, and the recovery of a different gun fromdefendant's residence at a later date.
In appeal No. 1, defendant contends that he was denied a fair trial by SupremeCourt's (Kehoe, A. J.) Molineux ruling and, alternatively, by the court's failure togive a limiting instruction with respect to the Molineux evidence. Defendant didnot preserve his alternative contention for our review, and we decline to exercise ourpower to review it as a matter of discretion in the interest of justice (see People v Williams, 107AD3d 1516, 1516 [2013], lv denied 21 NY3d 1047 [2013]; see alsoCPL 470.15 [6] [a]). We conclude that the court properly ruled that the People couldpresent Molineux evidence that defendant was on probation at the time of thecrimes herein inasmuch as such evidence was "necessary in order to 'complete thenarrative of the crime[s] charged' " (People v Copeland, 43 AD3d 1436, 1437 [2007], lvdenied 9 NY3d 1032 [2008]).
In any event, we conclude that any error in the admission of Molineuxevidence is harmless. The evidence at trial included the testimony of four of the fivevictims from the park, who testified that defendant was the man who pointed a gun atthem, ordered the group to the ground on threat of killing someone, directed anotherperson to grab a purse from a victim, and put the gun to the back of the head of one ofthe victims and fired a shot, which grazed the back of the head of that victim. Theevidence at trial also included defendant's statements to the police, in which he admittedto participating in the gunpoint robbery and possessing the gun found at his residence.Thus, the evidence of guilt is overwhelming (see People v Kelly, 71 AD3d 1520, 1521 [2010], lvdenied 15 NY3d 775 [2010]; People v Baker, 21 AD3d 1435, 1436 [2005], lvdenied 6 NY3d 773 [2006]), and we conclude that there is no significant probabilitythat "the jury would have [*2]acquitted defendant if theallegedly improper Molineux evidence had been excluded" (People v Casado, 99 AD3d1208, 1212 [2012], lv denied 20 NY3d 985 [2012]; see generally Peoplev Crimmins, 36 NY2d 230, 241-242 [1975]).
Contrary to defendant's further contention in appeal No. 1, we conclude that hereceived effective assistance of counsel (see generally People v Baldi, 54 NY2d137, 147 [1981]). "Under the circumstances, and in light of the People's case,. . . [defense] counsel pursued a logical defense strategy and successfully"avoided a conviction at trial on the highest count of the indictment (People v Hall, 68 AD3d1133, 1133 [2009], lv denied 14 NY3d 800 [2010]; see generally Peoplev Benevento, 91 NY2d 708, 712-713 [1998]).
Defendant further contends in appeal No. 1 that the court's imposition of fourconsecutive sentences on the second count, for robbery in the first degree, and the fifththrough seventh counts, for attempted robbery in the first degree, is illegal pursuant toPenal Law § 70.25 (2) because those counts are based upon a single act,i.e., the display of a gun to the group. We agree in part with defendant and conclude thatthe actus reus of the fifth through seventh counts was a single act constituting oneoffense, and thus the sentences on those counts must run concurrently with each other(see generally People vWright, 19 NY3d 359, 363-364 [2012]). We therefore modify the sentence inappeal No. 1 accordingly. The effect of the modification is a reduction of the aggregatesentence to a total of 33 years of imprisonment, i.e., 18 years of imprisonment for thesecond count plus 15 years of imprisonment for the fifth through seventh counts.
We further conclude, however, that the court properly ordered the sentence on thesecond count to run consecutively to the sentences on counts five through seven. "Whenmore than one sentence of imprisonment is imposed on a person for two or more offensescommitted through a single act or omission, or through an act or omission which in itselfconstituted one of the offenses and also was a material element of the other, the sentences. . . must run concurrently" (Penal Law § 70.25 [2]). "It is wellsettled 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 ofthe offenses and a material element of the other' " (People v Jackson, 56 AD3d1295, 1296 [2008], quoting People v Laureano, 87 NY2d 640, 643 [1996];see People v Wright, 19NY3d 359, 363 [2012]; Penal Law § 70.25 [2]). "If the statutoryelements . . . overlap under either prong of [section 70.25], the People mayyet establish the legality of consecutive sentencing by showing that the 'acts or omissions'committed by defendant were separate and distinct acts" (Laureano, 87 NY2d at643). It is equally well settled, however, that "trial courts retain consecutive sentencediscretion when separate offenses are committed through separate acts, though they arepart of a single transaction" (People v Brown, 80 NY2d 361, 364 [1992]). Here,the second count included an additional act, i.e, the taking of the purse, which allowedthe court to impose a consecutive sentence thereon.
In appeal No. 2, defendant contends that his plea must be vacated if, in appeal No. 1,the conviction is reversed or the aggregate sentence is reduced. After defendant wassentenced in appeal No. 1, the court (Affronti, J.) accepted defendant's Alfordplea to attempted murder in the first degree and sentenced him in accordance with aplea offer to the minimum sentence, i.e., 15 years to life imprisonment, to runconcurrently with the sentence in appeal No. 1. Inasmuch as we are not reversing hisconviction in appeal No. 1, "[t]he critical question is whether the . . .reduction of the preexisting sentence nullifie[s] a benefit that was expresslypromised and was a material inducement to the [Alford] plea" (People v Rowland, 8 NY3d342, 345 [2007] [emphasis added]). We conclude that the modification of theaggregate sentence in appeal No. 1 to 33 years does not nullify a benefit that wasexpressly promised and was not a material inducement to defendant's plea, and defendantis therefore not entitled to vacatur of the plea (see id.; see generally People vPichardo, 1 NY3d 126, 129 [2003]).
In appeal No. 2, defendant further contends that his plea must be vacated because hewas denied effective assistance of counsel based on defense counsel's failure to recognizethat defendant was not subject to a consecutive sentence for the attempted murder count.To the extent that defendant's contention concerning ineffective assistance of counselsurvives his Alford plea (see People v Thompson, 4 AD3d 785, 785-786 [2004],lv denied 2 NY3d 808 [2004]), we reject that contention. The record establishesthat defendant received "an advantageous plea and nothing in the record casts doubt onthe apparent effectiveness of counsel" (People v Ford, 86 NY2d 397, 404[1995]). In any event, contrary to defendant's contention, we conclude that a concurrent[*3]sentence was not required for the attempted murdercount in appeal No. 2 because the shooting of the male victim was an act separate anddistinct from the criminal acts in appeal No. 1. The sentence in appeal No. 2 wastherefore "not subject to the strictures of Penal Law § 70.25 (2)" (People v Rodriguez, 79 AD3d644, 645 [2010], affd 18 NY3d 667 [2012]; see generally People v Battles,16 NY3d 54, 58-59 [2010]). "Where, as here, separate acts are committed againstdifferent victims during the same criminal transaction, the court may properly imposeconsecutive sentences in the exercise of its discretion" (People v Lemon, 38 AD3d1298, 1299 [2007], lv denied 9 NY3d 846 [2007], reconsideration denied9 NY3d 962 [2007]). We have reviewed defendant's remaining contention in appealNo. 2 and conclude that it lacks merit. Present—Smith, J.P., Peradotto, Lindley,Valentino and Whalen, JJ.