| People v Henderson |
| 2017 NY Slip Op 01885 [148 AD3d 929] |
| March 15, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Wayne Henderson, Appellant. |
Lynn W. L. Fahey, New York, NY (Leila Hull of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Ellen C.Abbot, and Emil Bricker of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.),rendered January 26, 2012, convicting him of attempted murder in the second degree and assaultin the first degree (two counts), upon a jury verdict, and sentencing him, as a juvenile offender, toindeterminate terms of 3
Ordered that, upon remittitur from the Court of Appeals, the judgment is modified, on thelaw, by providing that the terms of imprisonment imposed on both of the convictions of assaultin the first degree are to run concurrently with each other and with the term of imprisonmentimposed upon the conviction of attempted murder in the second degree; as so modified, thejudgment is affirmed.
On January 9, 2010, the then-15-year-old defendant stabbed the then-12-year-old victimapproximately 20 times with a knife, in apparent retaliation for the victim's act of "snitching" tohis own mother that the defendant and codefendant used marijuana. In the course of the attack, an"X" was engraved onto the victim's face.
On appeal, the defendant contends that the Supreme Court erred in imposing consecutiveterms of imprisonment on his two convictions of assault in the first degree. Despite the People'scontention to the contrary, the defendant sufficiently preserved his instant claim regarding thepropriety of his sentence. In any event, "a challenge to an unlawful sentence falls outside thepreservation rule" (People v Samms, 95 NY2d 52, 56 [2000]; see People v Santiago, 22 NY3d900, 903 [2013]). We agree with the defendant's contention. Pursuant to Penal Law§ 70.25 (2), concurrent sentences must be imposed "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 [*2]the other." " 'Thus, sentences [of imprisonment] imposedfor two or more offenses may not run consecutively: (1) where a single act constitutes twooffenses, or (2) where a single act constitutes one of the offenses and a material element of theother' " (People v Grant, 123AD3d 942, 943-944 [2014], quoting People v Laureano, 87 NY2d 640, 643 [1996]).Nonetheless, " 'trial courts retain consecutive sentence discretion when separate offensesare committed through separate acts, though they are part of a single transaction' "(People v Grant, 123 AD3d at 944, quoting People v Brown, 80 NY2d 361, 364[1992]; see People v Azaz, 10NY3d 873, 875 [2008]).
Here, the People have failed to establish that the acts constituting the respective assault in thefirst degree convictions were separate and distinct from each other as required by the statute(see People v Laureano, 87 NY2d at 644-645; People v Brown, 80 NY2d at 364;People v Grant, 123 AD3d at 944). It is impossible to determine from the record whetherthe slashing of an "X" into the victim's face, which formed the basis for the assault in the firstdegree "intent to disfigure another person seriously and permanently" conviction (Penal Law§ 120.10 [2]), also formed the basis for the jury's verdict of guilt on the assault inthe first degree "intent to cause serious physical injury" conviction (Penal Law§ 120.10 [1]; see People vAlford, 14 NY3d 846 [2010]; People v Parks, 95 NY2d 811 [2000]; People vGrant, 123 AD3d at 944; cf. Peoplev Frederick, 14 NY3d 913 [2010]; People v Rodriguez, 79 AD3d 644 [2010]). Thus, the People failedto establish that the acts constituting each of the two assault in the first degree convictions wereseparate and distinct from each other. Accordingly, we modify the judgment to provide that theterms of imprisonment on the assault in the first degree convictions are to run concurrently witheach other and with the term imposed on the conviction of attempted murder in the seconddegree. Eng, P.J., Austin, Hinds-Radix and LaSalle, JJ., concur.