Opinion
2012-02-28
The PEOPLE, etc., respondent, v. Louis HOLMES, also known as Shabaka Shakur, appellant.
Lynn W.L. Fahey, New York, N.Y. (Michelle Vallone of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Michelle Vallone of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J. Dennehy of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Holdman, J.), entered December 24, 2008, which denied, without a hearing, his motion pursuant to CPL 440.20 to set aside so much of his sentence as imposed consecutive terms of imprisonment upon his two convictions of murder in the second degree.
ORDERED that the order is affirmed.
The Supreme Court properly denied the defendant's motion pursuant to CPL 440.20 to set aside so much of his sentence as imposed consecutive terms of imprisonment upon his two convictions of murder in the second degree ( see Penal Law § 125.25[1] ). The challenged consecutive sentences were imposed pursuant to the statutory sentencing scheme that requires concurrent sentences to be imposed “[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” (Penal Law § 70.25 [2] ), but allows for judicial discretion to impose consecutive sentences where “ ‘the “acts or omissions” committed by defendant were separate and distinct acts' ” ( People v. Frazier, 16 N.Y.3d 36, 41, 916 N.Y.S.2d 574, 941 N.E.2d 1151, quoting People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212; see People v. Battles, 16 N.Y.3d 54, 58, 917 N.Y.S.2d 601, 942 N.E.2d 1026, cert. denied 565 U.S. ––––, 132 S.Ct. 123, 181 L.Ed.2d 46; People v. McKnight, 16 N.Y.3d 43, 48, 917 N.Y.S.2d 594, 942 N.E.2d 1019; People v. Mannino, 89 A.D.3d 1105, 1105, 933 N.Y.S.2d 412).
Here, although the two victims' deaths “may be said to have occurred in the course of a single extended transaction,” contrary to the defendant's contention, there was no evidence that a single shot killed both victims ( People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 472 N.E.2d 29; see People v. Garcia, 303 A.D.2d 600, 756 N.Y.S.2d 492; People v. Grimes, 277 A.D.2d 945, 716 N.Y.S.2d 240). Since the evidence supported the sentencing court's conclusion that the two victims were killed by separate bullets and, thus, that there were separate and distinct acts involved, the motion court correctly concluded that the imposition of consecutive sentences was not illegal ( see People v. McKnight, 16 N.Y.3d 43, 917 N.Y.S.2d 594, 942 N.E.2d 1019; People v. Jones, 41 A.D.3d 507, 509, 838 N.Y.S.2d 126).
The defendant's contention that New York's sentencing scheme with respect to the imposition of consecutive sentences was rendered unconstitutional by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 and its progeny ( see e.g. Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403) is without merit ( see Oregon v. Ice, 555 U.S. 160, 164, 129 S.Ct. 711, 172 L.Ed.2d 517; People v. Mannino, 89 A.D.3d at 1106, 933 N.Y.S.2d 412; People v. Bridges, 63 A.D.3d 752, 753, 880 N.Y.S.2d 341; People v. Cruz, 46 A.D.3d 567, 568, 846 N.Y.S.2d 376; People v. Azaz, 41 A.D.3d 610, 611–612, 837 N.Y.S.2d 339, affd. 10 N.Y.3d 873, 860 N.Y.S.2d 768, 890 N.E.2d 883).