The records reveal that the accused moves before the Court, pursuant to Criminal Procedure Law, section 440.20, in order to vacate the sentences imposed upon him pursuant to an Indictment. It appears that after having been found Guilty by a jury of the Crimes of Burglary in the Third Degree and Grand Larceny in the First Degree, he was sentenced to an indeterminate term of imprisonment for a maximum of ten years and a minimum of five years under each count, said sentences to be served consecutively. The accused asserts that these sentences are violative of former Penal Law Section 1938 which precludes double punishment for a single act, although ‘made criminal and punishable in different ways, by different provisions of law.’
In support of the foregoing contention, the accused alludes to People v. Savarese, which involved a kidnapping and a robbery. A Judge held that if all the acts performed were Necessary or Incidental to the commission of a single crime and were motivated by an intent to commit that crime, Then even if another separate crime be committed or another statute also be violated, he may not be doubly punished. If, however, any of the acts were not necessary to or incidental to the commission of the crime intended and those acts result in the commission of a separate crime, then he may be punished for each crime. Applying this rule, the Judge found that kidnapping a truck driver and his assistant while their truck was being hijacked was necessary and incidental to the robbery; therefore, though properly convicted of both kidnapping and robbery; the accused could not be punished for both crimes.
Court ruled that Section 1938 of the Former Penal Law provides, in part, as follows: ‘An act or omission which is made criminal and punishable in different ways, by different provisions of law, may be punished under any one of those provisions, but not under more than one’.
The leading case interpreting this Section is People ex rel. Maurer v. Jackson. There, the Court of Appeals, at pages 264 and 265, stated: ‘It is clear that if separate and distinct acts were committed, and that they violated more than one section of the Penal Law, punishment for each of them would be proper although they arose out of a single transaction. It is also not open to dispute that if there were merely a single inseparable act violative of more than one statute, or if there were an act which itself violated one statute and was a material element of the violation of another, there would have to be single punishment. We recognize that Section 1938 is not by its terms limited to included crimes although it is clear that the statute will there apply; If, however, the acts are separable, it will not apply.’
‘The test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether Separate acts have been committed with the requisite criminal intent.’ In this regard, the maverick of the moment has been the Appellate Division, Fourth Department, which has looked to the motivating force of the transaction to determine whether or not separate and distinct acts have been committed. The Fourth Department has looked to the accused’s Intent; if two crimes arose out of a single criminal transaction and were ‘motivated by a continuing intent’, then consecutive sentences are improper. The Second Department, in applying Former Penal Law section 1938 and the test distilled from Maurer to Burglary and Robbery or Larceny charges, has consistently held consecutive sentences to be valid. From the foregoing, the inescapable conclusion is that Burglary and Grand Larceny are two separate and distinct acts for which consecutive punishment would be warranted.
One further point should be made here. The present Criminal Penal Law equivalent of Section 1938 is Section 70.25(2). That Section provides as follows: ‘When 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.’
In his Practice Commentary to Penal Law section 70.25, Peter Preiser states: ‘Subdivision 2 sets forth the limitation on the use of consecutive sentences. This rule is The same as the one enunciated in former Penal Law, section 1938 as interpreted by the Court of Appeals in People ex rel Maurer v. Jackson. As recently as People v. Tanner, the Court of Appeals in interpreting PL 70.25, cited as controlling the Maurer case in finding ‘successive separate acts’ upon the record before them and upheld consecutive sentences. We can only conclude from this that the cases determined under the former Penal Law are still apposite today. Those cases, as noted above, hold that consecutive sentences for Burglary and Larceny charges are proper. Consequently, this aspect of the accused’s motion must be denied.
In a supplemental motion, the accused complains that the trial evidence was insufficient and that the Court’s charge was incorrect with regard to the count of Grand Larceny in the First Degree. He contends that ‘the People established that the stolen property had a value of over twenty-five dollars ($25.00), but not more than five hundred dollars ($500.00); therefore, the conviction for Grand Larceny in the First Degree should not stand.’
Former Penal Law Section 1294 provides: ‘A person is guilty of grand larceny in the first degree, who steals, or unlawfully obtains or appropriates, in any manner specified in this article: 1. Property of any value, by taking the same from the person or another in the night time; or 2. Property of the value of more than twenty-five dollars, by taking the same in the night time from any dwelling-house, vessel, or railway car; or, 3. Property of the value of more than five hundred dollars, in any manner whatever.’
The trial record indicates that the appraised value of the property taken was $83.00. The Court instructed the jury properly pursuant to Former Penal Law section 1294(2). The jury then apparently found the accused guilty of stealing or unlawfully obtaining or appropriating property of a value of more than $25.00 by taking the property in the night time from the victim’s dwelling.
His reliance on People v. Royster, is misplaced. That case involved a different indictment for a different larceny in which apparently the People had failed to prove the value of the property stolen to be more than $500.00. That case, however, in no wise affects the validity of the conviction in the case at bar nor does it affect the meaning or interpretation of Former Penal Law section 1294(2). In view of the foregoing, the instant motion is in all respects denied.
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