New York Criminal Lawyer Blog
A man was indicted on three counts of robbery in the first degree, one count of attempted robbery in the first degree, five counts of grand larceny in the first degree, one count of assault in the first degree, one count of unlawfully carrying a loaded pistol concealed upon the person, three counts of assault in the second degree, and petit larceny.
A New York Criminal Lawyer said the aforesaid man pleaded guilty to attempted robbery in the first degree (13th count), assault in the first degree (14th count), and unlawfully carrying a loaded pistol concealed upon the person (16th count).
On the date of sentencing, the District Attorney of Nassau County filed an Information charging that the man had previously been convicted of the felony of attempted rape in the second degree, which was admitted to be true.
Thereafter, sentence was pronounced for the three crimes to which he had pleaded guilty; and, in addition for being armed with a loaded pistol on the commission of the foregoing crimes. The first three of the sentences were ordered to run concurrently and the last consecutively.
A Brooklyn Criminal Lawyer said the convicted man has filed a petition before the Supreme Court of Clinton County contending that the last three sentences violated the Penal Law in that they constituted multiple punishments. The Supreme Court, without opinion, dismissed the petition.
The Appellate Division agreed with the Supreme Court on the appropriateness of all the sentences except that for assault, and accordingly reversed, remanding it to the County Court of Nassau County for resentencing. The convicted man did not appeal from the determination of the Appellate Division.
Thus, his present contentions with respect to the invalidity of his sentences for unlawfully carrying a concealed weapon on his person and for being armed during the commission of the crimes are not properly before the court.
The single issue now presented is whether the imposition of concurrent sentences for assault in the first degree and attempted robbery in the first degree in this case violated the prohibition of double punishment contained in the Penal Law.
Under the rules, 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 a single punishment.
The lower court cases applying the foregoing criteria to the crimes of assault and robbery have held that the act which constitutes the element of force in the robbery may not be made the basis of consecutive punishment for assault. Courts have held that where defendant pointed a loaded revolver at certain persons and robbed them, there could not be consecutive sentences for both robbery and assault with a deadly weapon.
In the case now before us the meager record will not permit us to determine precisely the acts of the defendant (convicted man) since there was no trial because he pleaded guilty. Only the indictment may guide us as to the acts constituting the crimes. From the plea of guilt thereto, we know that defendant admitted not only the act of attempting to rob and the assault incidental thereto, i.e., with intent to commit that felony, but also a separate act of aiming and discharging a loaded pistol with intent to kill.
The law provides that discharging a revolver with intent to kill a victim is not an essential element of the crime of robbery; and that an assault with intent to kill a human being is quite different from one with intent to commit a felony. The latter is an element of robbery, the former is not; it is only the former that is alleged in count 14 (charging assault) of the herein indictment. Had he been indicted in that count for assault with intent to commit a felony, the situation would have been different.
Here, one single act is not the basis of the two charges; they were separable and distinct and involved two different kinds of conduct, even though arising out of the same transaction. They were so treated in the counts to which defendant pleaded guilty.
Moreover, since the sentence on the assault count was made to run concurrently with the sentence on the attempted robbery count, which distinguishes the case from cases relied on by respondent, there was no multiple punishment in violation of the Penal Law in any event.
The contention that the practice of imposing concurrent sentences for included crimes is not uncommon in the courts; to say that it may not be done would cloud countless sentences and invite innumerable pointless applications. As already noted, and as the High Court have recognized, the United States courts sanction this practice, although it is true that there is no Federal counterpart of the applicable section. But section 1938 does not forbid convictions or concurrent sentences as such only punishment. When the shorter sentence runs concurrently with the longer, there is no punishment for the shorter; it does not inflict upon a defendant any additional restraint or detention. He is expressly protected from having the offenses count cumulatively in determining his status as a multiple offender. The claim of possible detriment to a defendant in a subsequent case of having a long list of sentences is not valid. If such were to be adopted, then there would nevertheless be a recital of all the defendant’s criminal acts in a single sentence.
Here, the conviction of the defendant for assault in the first degree must stand; there is no issue as to its validity; the defendant pleaded guilty. All what is at issue is the proper sentence; the removal of a concurrent sentence from his record will in no way remove the mark or dim the fact of his conviction of the crime of assault with intent to kill.
Where a criminal act which is a composite of several included offenses is followed by a multiple count indictment, and convictions are obtained on more than one count, the imposition of concurrent sentences for lesser included offenses insures that the defendant will not go unpunished if there is an error in his conviction for the highest degree of offense resulting in an acquittal as to that count.
Whether you have been charged with theft, drug possession or sex crimes, it is important to speak with a lawyer for guidance. Call Stephen Bilkis and Associates for advice and a free consultation.