People v. Bailey

• Decision Date: 19 December 2018
• Docket Number: 2017–02037,S.C.I. No. 1565/16
• Citation: 90 N.Y.S.3d 122,167 A.D.3d 924
• Parties: The PEOPLE, etc., Respondent, v. Nicolus BAILEY, Appellant.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 924

90 N.Y.S.3d 122

The PEOPLE, etc., Respondent,

v.Nicolus BAILEY, Appellant.

2017–02037

S.C.I. No. 1565/16

Supreme Court, Appellate Division, Second Department, New York.

Submitted—October 2, 2018

December 19, 2018

Paul Skip Laisure, New York, N.Y. (Ronald Zapata of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Danielle M. O'Boyle of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Stephanie Zaro, J.), rendered January 4, 2017, convicting him of criminal possession of a weapon in the third degree (three counts), upon his plea of guilty, and sentencing him to consecutive indeterminate terms of imprisonment of 2 to 5 years on each count.

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 three counts of 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. McKnight, 16 N.Y.3d 43, 47, 917 N.Y.S.2d 594, 942 N.E.2d 1019 ; see Penal Law 70.25[2] ; People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212 ). 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 sentencing ( People v. Rodriguez, 25 N.Y.3d 238, 244, 10 N.Y.S.3d 495, 32 N.E.3d 930 ; People v. Taveras, 12 N.Y.3d 21, 25, 878 N.Y.S.2d 642, 906 N.E.2d 370 ).

Here, no facts were alleged in the Superior Court Information or adduced at the defendant's plea allocution which establish three separate acts of possession (see generally 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 three counts of criminal possession of a weapon in the third degree (see People v. Smith, 167 A.D.3d 944, 90 N.Y.S.3d 112, 2018 WL 6626607 [decided herewith]; People v. Garcia, 129 A.D.3d 524, 10 N.Y.S.3d 433 ; People v. Baker, 94 A.D.3d 1553, 942 N.Y.S.2d 918 ; People v. Mitchell, 77 A.D.3d 1376, 1378, 909 N.Y.S.2d 269 ; People v. Hunt, 52 A.D.3d 1312, 1313, 859 N.Y.S.2d 848 ; People v. Paccione, 290 A.D.2d 567, 736 N.Y.S.2d 617 ; People v. Salazar, 290 A.D.2d 256, 257, 736 N.Y.S.2d 20 ; People v. Rogers, 111 A.D.2d 665, 666, 490 N.Y.S.2d 222 ). We thus modify the sentences so as to...