Opinion
341 KA 18-02098
07-16-2021
The PEOPLE of the State of New York, Respondent, v. Negus J. DESOUZA, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (A. VINCENT BUZARD OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (A. VINCENT BUZARD OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of attempted assault in the first degree ( Penal Law §§ 110.00, 120.10 [1] ), attempted robbery in the first degree ( §§ 110.00, 160.15 [4] ), and two counts of criminal possession of a weapon in the third degree (§ 265.02 [1], [3]). We affirm.
Defendant contends that his sentence is illegal because County Court violated Penal Law § 70.25 (2) by imposing consecutive sentences on the counts charging attempted assault in the first degree and attempted robbery in the first degree. We reject that contention. Pursuant to Penal Law § 70.25 (2), "[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences ... must run concurrently." Thus, "[i]t is well settled 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 of the offenses and a material element of the other’ " ( People v. Jackson , 56 A.D.3d 1295, 1296, 867 N.Y.S.2d 819 [4th Dept. 2008], quoting People v. Laureano , 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212 [1996] ; see § 70.25 [2] ; People v. Wright , 19 N.Y.3d 359, 363, 948 N.Y.S.2d 228, 971 N.E.2d 358 [2012] ). The People have the burden of establishing the legality of consecutive sentences (see People v. Brahney , 29 N.Y.3d 10, 13-14, 51 N.Y.S.3d 9, 73 N.E.3d 349 [2017], rearg denied 29 N.Y.3d 1046, 56 N.Y.S.3d 507, 78 N.E.3d 1192 [2017] ; People v. Tripp , 177 A.D.3d 1409, 1410, 113 N.Y.S.3d 432 [4th Dept. 2019], lv denied 34 N.Y.3d 1133, 118 N.Y.S.3d 534, 141 N.E.3d 490 [2020] ), and "once the People offer evidence of the existence of a separate and distinct act, the trial court has discretion to order consecutive sentences" ( People v. Couser , 28 N.Y.3d 368, 377, 45 N.Y.S.3d 301, 68 N.E.3d 26 [2016] ).
Here, the court lawfully imposed consecutive sentences because the evidence establishes that, although both crimes were committed against the same victim during the course of one continuous transaction, the acts constituting the attempted robbery were separate and distinct from the acts constituting the attempted assault (see generally People v. Rodriguez , 25 N.Y.3d 238, 244-245, 10 N.Y.S.3d 495, 32 N.E.3d 930 [2015] ; People v. McKnight , 16 N.Y.3d 43, 49, 917 N.Y.S.2d 594, 942 N.E.2d 1019 [2010] ; People v. Samms , 83 A.D.3d 1099, 1100, 921 N.Y.S.2d 317 [2d Dept. 2011], lv denied 17 N.Y.3d 809, 929 N.Y.S.2d 569, 953 N.E.2d 807 [2011] ). The attempted robbery was completed when defendant pointed a rifle at the victim and demanded his money (see Penal Law §§ 110.00, 160.15 [4] ), and the attempted assault was committed when defendant formed a new intent to cause serious physical injury to another person and performed the separate and distinct act of repeatedly firing the rifle at the victim (see §§ 110.00, 120.10 [1] ; People v. Hayes , 84 A.D.3d 463, 464, 922 N.Y.S.2d 79 [1st Dept. 2011], lv denied 17 N.Y.3d 817, 929 N.Y.S.2d 805, 954 N.E.2d 96 [2011] ; People v. Murray , 299 A.D.2d 225, 225-226, 749 N.Y.S.2d 411 [1st Dept. 2002], lv denied 99 N.Y.2d 631, 760 N.Y.S.2d 112, 790 N.E.2d 286 [2003] ; see generally Couser , 28 N.Y.3d at 377, 45 N.Y.S.3d 301, 68 N.E.3d 26 ). The sentence is not unduly harsh or severe.