New York Criminal Lawyer Blog
At approximately noon on July 12, 1982, defendant savagely attacked a man in his apartment. After defendant took certain items of jewelry from the man, defendant’s accomplice bound the man, and defendant slashed the man’s neck twice with a knife. The perpetrators then foraged around the apartment for loot. The defendant returned to check the man’s pulse, and stabbed him several times in the back of the neck. After a final search of the apartment, the accomplice, an acquaintance of the man, told defendant to “make sure”. The defendant returned and stabbed the man twice in the chest. The perpetrators then placed two mattresses over the man, set them afire, and left. The man miraculously survived, due to a blood clot in his jugular vein.
Subsequently, the defendant was arrested and, following a jury trial, was found guilty of attempted murder in the second degree, two counts of robbery in the first degree, robbery in the second degree, two counts of assault in the first degree, and two counts of burglary in the first degree.
The sentencing court found that the attempted murder occurred after the robbery and burglary were completed.
Accordingly, the court sentenced defendant as a predicate violent felony offender to concurrent maximum terms of imprisonment for the attempted murder and assault convictions, to run consecutively to concurrent terms of from seven and a half years to fifteen years on the robbery and burglary convictions.
The primary issue here is whether or not consecutive sentences were authorized under Penal Law.
Concurrent sentences are required when a single inseparable act violates more than one statute, or if an act violates one statute and is a material element in the violation of the other.
On the other hand, consecutive sentences are proper for separate and distinct acts which violate more than one section of the Penal Law, even if such acts are part of a continuous course of activity.
Here, the sentences on the assault convictions should be made to run concurrently with the sentences on the robbery and burglary convictions related to the use of the knife. The defendant’s act of repeatedly stabbing the complainant in itself constituted the offense of assault. This act was also a material element in the first degree burglary and robbery charges which related to the use of the knife, i.e., uses or threatens the immediate use of a dangerous instrument. In addition, the offenses of robbery in the first and second degrees were material elements of the felony assault charge, i.e., in the course of the commission of a felony, to wit, robbery, defendant caused serious physical injury to the complainant.
Moreover, the assault and the robbery and burglary constituted a single inseparable act. The indictment charged, and the jury found, that defendant used a knife in the course of the commission of the robbery and burglary. The assault was in progress at the time of the acts which constituted elements of the robbery and burglary, and was an integral part of it, since the basic acts are similar.
The sentence on the attempted murder conviction was properly made to run consecutively to the sentences on the other offenses. The record supports the sentencing court’s finding that the robbery and burglary and the attempted murder emanated from separate successive acts. The attempted homicide here appeared as an “unnecessary afterthought”. The defendant’s final attack upon the victim in an attempt to guarantee his demise occurred after the robbery had been completed.
Defendant is sentenced to concurrent terms of imprisonment of from twelve and one-half to twenty-five years on the attempted murder count and of from seven and one-half to fifteen years on the assault counts, which sentences were to run consecutively to concurrent terms of seven and one-half to fifteen years on the robbery and burglary counts, modified, on the law, to provide that the sentences on the assault counts run concurrently with the sentences on the burglary and robbery counts and, as so modified, otherwise affirmed.
The court has considered defendant’s other contentions and finds that they are lacking in merit.
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