Opinion
2017–02705 Ind.No. 3812/16
12-11-2019
The PEOPLE, etc., Respondent, v. Ernest ROBINSON, Appellant.
Paul Skip Laisure, New York, N.Y. (Anna Kou of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Amy Appelbaum, and Daniel Berman of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Anna Kou of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Amy Appelbaum, and Daniel Berman of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, SHERI S. ROMAN, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that the judgment is modified, on the law, by providing that the sentences imposed shall run concurrently with each other; as so modified, the judgment is affirmed.
We agree with the defendant's contention that it was unlawful to impose consecutive sentences upon his convictions of two counts of attempted criminal possession of a weapon in the third degree. Sentences imposed for two or more offenses may not run consecutively where, inter alia, "a single act constitutes two offenses" ( People v. Laureano , 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212 ; see Penal Law § 70.25[2] ). Conversely, consecutive sentences may be imposed when, among other things, "the facts demonstrate that the defendant's acts underlying the crimes are separate and distinct" ( People v. Ramirez , 89 N.Y.2d 444, 451, 654 N.Y.S.2d 998, 677 N.E.2d 722 ). The People bear the burden of establishing the legality of consecutive sentences (see People v. Laureano , 87 N.Y.2d at 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212 ). "Where, as here, the defendant is convicted upon a plea to a lesser offense than that charged in the indictment, the People may rely only on those facts admitted during the plea allocution" in order to meet that burden ( People v. Quirk , 73 A.D.3d 1089, 1090, 900 N.Y.S.2d 682 ; see People v. Laureano , 87 N.Y.2d at 644, 642 N.Y.S.2d 150, 664 N.E.2d 1212 ).
Here, no facts were adduced at the defendant's plea allocution which establish two separate acts of constructive possession (see People v. Smith , 167 A.D.3d 944, 945–946, 90 N.Y.S.3d 112 ; see generally People v. Dean , 8 N.Y.3d 929, 930–931, 834 N.Y.S.2d 704, 866 N.E.2d 1032 ; People v. Laureano , 87 N.Y.2d at 644–645, 642 N.Y.S.2d 150, 664 N.E.2d 1212 ). Accordingly, there was no basis for imposing consecutive sentences for both counts of attempted criminal possession of a weapon in the third degree (see People v. Smith , 167 A.D.3d at 945–946, 90 N.Y.S.3d 112 ; People v. Bailey , 167 A.D.3d 924, 925, 90 N.Y.S.3d 122 ; People v. Garcia , 129 A.D.3d 524, 525, 10 N.Y.S.3d 433 ; People v. Baker , 94 A.D.3d 1553, 942 N.Y.S.2d 918 ; People v. Paccione , 290 A.D.2d 567, 736 N.Y.S.2d 617 ). We thus modify the sentences so that they run concurrently with each other (see People v. Bethea , 56 A.D.3d 485, 865 N.Y.S.2d 922 ).
SCHEINKMAN, P.J., BALKIN, ROMAN and CONNOLLY, JJ., concur.