People v. Brown

• Decision Date: 14 November 2013
• Court: New York Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of New York, Respondent, v. Thomas BROWN, Appellant. The People of the State of New York, Respondent, v. Joseph Harris, Appellant. The People of the State of New York, Respondent, v. Darnell Carter, Appellant.

21 N.Y.3d 739
999 N.E.2d 1168
977 N.Y.S.2d 723
2013 N.Y. Slip Op. 07514

The PEOPLE of the State of New York, Respondent
v.
Thomas BROWN, Appellant.

The People of the State of New York, Respondent
v.
Joseph Harris, Appellant.

The People of the State of New York, Respondent
v.
Darnell Carter, Appellant.

Court of Appeals of New York.

Nov. 14, 2013.

977 N.Y.S.2d 725

The Legal Aid Society, Bronx (Lily Goetz of counsel), and Richard M. Greenberg, Office of the Appellate Defender, New York City (Risa Gerson of counsel), for appellant in the first above-entitled action.

Cyrus R. Vance, Jr., District Attorney, New York City (Martin J. Foncello, Susan Axelrod and Christopher P. Marinelli of counsel), for respondent in the first above-entitled action.

Richard M. Greenberg, Office of the Appellate Defender, New York City (Thomas M. Nosewicz of counsel), for appellant in the second above-entitled action.

Cyrus R. Vance, Jr., District Attorney, New York City (Ellen Stanfield Friedman and Christopher P. Marinelli of counsel), for respondent in the second above-entitled action.

David J. Farrugia, Public Defender, Lockport (Mary–Jean Bowman of counsel), for appellant in the third above-entitled action.

Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), for respondent in the third above-entitled action.

OPINION OF THE COURT

READ, J.

999 N.E.2d 1170

21 N.Y.3d 744

We are asked in these appeals to decide whether a sentence imposed for “simple” knowing, unlawful possession of a loaded weapon (i.e., without any intent to use) was properly run consecutively to the sentence for another crime committed with the same weapon. We conclude that these three defendants completed the crime of possession independently of their commission of the later crimes, and therefore consecutive sentencing was permissible.

I

Statutory Background

Penal Law § 70.25(2) provides as follows:

21 N.Y.3d 745

“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.”

Before 2006, Penal Law § 265.03, second-degree criminal possession of a weapon, provided that

“[a] person is guilty of criminal possession of a weapon in the second degree when, with intent to use the same unlawfully against another: (1) he possesses a machine-gun; or (2) he possesses a loaded firearm; or (3) he possesses a disguised gun” (former Penal Law § 265.03 [emphasis added] ).

The Legislature amended the statute in 2006 to include, in addition to specific-intent possession, a so-called “simple” possession provision. Specifically, the statute now reads as follows:

“A person is guilty of criminal possession of a weapon in the second degree

999 N.E.2d 1171

977 N.Y.S.2d 726

when: (1) with intent to use the same unlawfully against another, such person: (a) possesses a machine-gun; or (b) possesses a loaded firearm; or (c) possesses a disguised gun; or (2) such person possesses five or more firearms; or (3) such person possesses any loaded firearm ” (Penal Law § 265.03 [emphasis added]; see also L. 2006, ch. 742).

Further, before 2006 the unlawful possession of a loaded firearm outside one's home or business was third-degree criminal possession of a weapon. The Legislature elevated this type of possession to a second-degree crime when it amended the Penal Law in 2006.

II

Brown

Around 4:00 a.m. on June 19, 2005, Jarvis Bradford and friends were leaving the Cherry Lounge at 128th Street and Amsterdam Avenue in Manhattan. Bradford and defendant Thomas Brown, who had also been at the club, began arguing. A witness later testified that Brown and Bradford gestured to their waistbands and “make like they had something with them right there at the scene.” Brown walked away and got into the

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back seat of his van; he also gave the van's keys to his brother-in-law, Giovanni Alvarado, and instructed Alvarado to wait for Bradford to leave and then to follow. Brown told Alvarado he was going to shoot Bradford. Alvarado did as requested, following Bradford and friends to a nearby McDonald's.

Bradford left his car and went to the walk-up window to order food. Brown left his van, walked up to Bradford and shot him four times from less than 10 feet away, killing him. Brown ran back to the van, and Alvarado later testified that he had “something that appeared to be a gun” in his left hand as he returned to the van, but Alvarado also testified he “didn't see exactly.” Alvarado and defendant drove away.

Several days later, Brown and Alvarado traveled to Atlanta, where they remained for several months. Alvarado returned to New York in November 2005 and was arrested for Bradford's murder. He entered into a cooperation agreement with the People. On May 12, 2006, Brown was arrested in Baltimore for possession of four firearms. He was subsequently extradited to New York, where he was arraigned in New York County on June 26, 2006, for crimes related to the killing of Bradford.

Brown was subsequently convicted after a jury trial of second-degree intentional murder (Penal Law § 125.25[1] ), and third-degree criminal possession of a weapon (former Penal Law § 265.02[4] ).¹ Supreme Court sentenced Brown to consecutive prison terms of 25 years to life for the murder, and three years for the weapon possession.

On appeal, Brown argued that the trial court erred in imposing consecutive sentences. In December 2011, the Appellate Division unanimously affirmed the judgment of conviction and sentence (90 A.D.3d 575, 936 N.Y.S.2d 537 [1st Dept.2011] ). The court concluded that consecutive sentences were properly imposed under Penal Law § 70.25(2) because the murder and weapon possession were separate acts for sentencing purposes (id. at 576, 936 N.Y.S.2d 537 ). On June 21, 2012, a Judge of this Court granted defendant leave to appeal (19 N.Y.3d 958, 950 N.Y.S.2d 110, 973 N.E.2d 208 [2012] ), and we now affirm.

977 N.Y.S.2d 727

999 N.E.2d 1172

Harris

On September 25, 2008, Leonard Lewis was driving near West 112th Street and Lenox Avenue in Manhattan. He stopped to

21 N.Y.3d 747

talk with a friend, “Alley Mo,” and saw several other individuals whom he knew standing nearby, including defendant Joseph Harris. Twenty minutes later, Harris approached Lewis's car, and said, “What's up? You all right?” He shook Lewis's hand and then shot him five or six times. Harris ran across the street into a housing project. Lewis flagged down a police car and described the incident. Several days later, Lewis picked out Harris as the shooter from a photo array.

On November 3, 2008, Harris was indicted for crimes in connection with the shooting of Lewis. He was later convicted after a jury trial of second-degree attempted murder (Penal Law §§ 110.00, 125.25[1] ), first-degree assault (Penal Law § 120.10[1] ) and two counts of second-degree criminal possession of a weapon (Penal Law § 265.03[1][b] ; [3] [possession with intent to use unlawfully against another; possession outside one's home or place of business] ).² Supreme Court sentenced Harris as a persistent violent felony offender to 45 years to life in prison: 25 years to life for the attempted murder and assault, and 20 years to life for weapon possession with intent to use unlawfully, to run concurrently with each other; and 20 years to life for the weapon possession outside the home or business, to run consecutively to the sentences for attempted murder and assault.

On appeal, Harris argued that the trial court erred in imposing consecutive sentences for the criminal possession of a weapon and the attempted murder and assault. In June 2012, the Appellate Division affirmed (96 A.D.3d 502, 947 N.Y.S.2d 61 [1st Dept.2012] ). The Court remarked that the weapon possession crime

“has no intent [to use] element; accordingly, the issue of whether consecutive sentences require separate unlawful intents is not implicated here. The evidence clearly established that [Harris] was carrying the weapon at the time he encountered and shot [Lewis]. Accordingly, the act of possession was complete before the shooting, and consecutive sentences were authorized by Penal Law § 70.25(2) ” (id. at 503, 947 N.Y.S.2d 61 [citations omitted] ).

On September 28, 2012, a Judge of this Court granted defendant leave to appeal (19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111 [2012] ), and we now...