| People v Hall |
| 2020 NY Slip Op 06825 [188 AD3d 1416] |
| November 19, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kevin Hall, Appellant. |
Erin C. Morigerato, Albany, for appellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Pritzker, J. Appeal, by permission, from an order of the Supreme Court (Breslin, J.), enteredJune 25, 2018 in Albany County, which denied defendant's motion pursuant to CPL 440.20 to setaside the sentence following his convictions of burglary in the second degree, grand larceny inthe fourth degree and criminal possession of stolen property in the fourth degree, without ahearing.
In 2007, defendant was convicted, after a jury trial, of burglary in the second degree, grandlarceny in the fourth degree and criminal possession of stolen property in the fourth degree (57AD3d 1222 [2008], lv denied 12 NY3d 817 [2009]). The convictions stem fromdefendant's actions in burglarizing and possessing stolen property from a residence in October2006 (id. at 1224 n). Upon the convictions, defendant was sentenced to 15 years in prisonfollowed by three years of postrelease supervision on the second degree burglary conviction, and1
In 2018, defendant moved pursuant to CPL 440.20 to set aside his sentence, contending thatconsecutive sentences were not authorized. Supreme Court denied the motion, without a hearing,and defendant appeals, by permission, from the court's resulting order.
We affirm, although for reasons different from those relied upon by Supreme Court. Initially,we agree with defendant that Supreme Court erred in relying on CPL 440.10 to deny this motioninasmuch as defendant did not move pursuant to CPL 440.10 to vacate the judgment ofconviction (compare CPL 440.10 [1], with CPL 440.20 [4]; see 1.20 [13],[14], [15]). Defendant's motion was made solely pursuant to CPL 440.20 to "set aside thesentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as amatter of law" (CPL 440.20 [1]). Moreover, although the record does not reflect that defendantraised the issue of the legality of the consecutive sentences at or prior to sentencing, he did not byhis silence waive this issue, which was preserved for our review by this motion pursuant to CPL440.20, a proper vehicle by which to challenge the legality of consecutive sentences (see People v Jurgins, 26 NY3d607, 611-612 [2015]). Nor was the issue previously decided upon appeal, when defendant'sconvictions were affirmed, so as to require denial of the motion pursuant to CPL 440.20 (2).
However, the motion to set aside the sentence was properly denied as consecutive sentenceswere lawful under Penal Law § 70.25, which authorizes sentences to either runconcurrently or consecutively. Penal Law § 70.25 (2) prohibits consecutivesentences only "(1) where a single act constitutes two offenses, or (2) where a single actconstitutes one of the offenses and a material element of the other" (People v Brahney, 29 NY3d 10, 14[2017] [internal quotation marks and citation omitted]; see People v Redden, 182 AD3d 926, 928 [2020]). Thus,"consecutive sentences may be imposed when either the elements of the crimes do not overlap orif the facts demonstrate that the defendant's acts underlying the crimes are separate and distinct;conversely, where the actus reus is a single inseparable act that violates more than one statute, asingle punishment must be imposed" (People v Brahney, 29 NY3d at 15 [internalquotation marks, brackets and citations omitted]; see People v Rodriguez, 25 NY3d 238, 244 [2015]; People v McKnight, 16 NY3d 43,48 [2010]; People v Henry, 173AD3d 1470, 1481 [2019], lv denied 34 NY3d 932 [2019]).
Defendant's conviction for burglary in the second degree established, as charged, that he"knowingly enter[ed] or remain[ed] unlawfully in a [dwelling] with intent to commit a crimetherein" (Penal Law § 140.25 [2]). In contrast, his conviction for criminalpossession of stolen property in the fourth degree established that he "knowingly possess[ed]stolen property, with intent to benefit himself or a person other than an owner thereof or toimpede the recovery by an owner thereof" and the property consisted of "a credit card, debit cardor public benefit card" (Penal Law § 165.45 [2]). There is no overlap in statutoryelements and the actus reus of each is distinct. Consecutive sentences were authorized for theseconvictions because the act of unlawfully possessing stolen credit cards was not an element ofthe crime of burglary in the second degree, which only required unlawfully entering or remainingin the dwelling with intent to commit a crime therein; it is not an element of the offense ofburglary that the intended crime was actually committed (see People v Mackey, 49 NY2d274, 279 [1980]; People v Judware,75 AD3d 841, 844 [2010], lv denied 15 NY3d 853 [2010]). To that end, "[b]urglarymay be committed without stealing [or possessing] property," and the burglary was completedwhen defendant entered the victim's dwelling with the requisite intent; the ensuing theft andpossession of stolen credit cards was a separate crime committed by separate acts (People vHenry, 173 AD3d at 1482; seePeople v Frazier, 16 NY3d 36, 41 [2010]; People v Kirkland, 105 AD3d 1337, 1339 [2013], lv denied21 NY3d 1043 [2013]). Moreover, no single act constituted both offenses; nor was there a singleact required of one of the offenses that was also a material element of the other offense (seePeople v Brahney, 29 NY3d at 14-15). As "the elements of the crimes do not overlap [and]the facts demonstrate that the defendant's acts underlying the crimes [were] separate anddistinct," consecutive sentences were authorized (id. at 15 [internal quotation marks andcitation omitted]). Accordingly, defendant's motion was properly denied.
Egan Jr., J.P., Mulvey, Aarons and Colangelo, JJ., concur. Ordered that the order isaffirmed.