People v. Brown

• Citation: 590 N.Y.S.2d 422,80 N.Y.2d 361,604 N.E.2d 1353
• Parties: , 604 N.E.2d 1353 The PEOPLE of the State of New York, Respondent, v. Kevin BROWN, Appellant.
• Decision Date: 19 November 1992
• Court: New York Court of Appeals

Page 422

590 N.Y.S.2d 422

80 N.Y.2d 361, 604 N.E.2d 1353

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

Court of Appeals of New York.

Nov. 19, 1992.

[604 N.E.2d 1354] [80 N.Y.2d 362] Howard A. Pincus and E. Joshua Rosenkranz, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. of New York County, New York City (Robert M. Raciti and Nikki Kowalski, of counsel), for respondent.

OPINION OF THE COURT

BELLACOSA, Judge.

Defendant was sentenced to consecutive terms of imprisonment upon his conviction by a jury of reckless endangerment in the first degree (Penal Law § 120.25) and criminal possession of stolen property in the third degree (Penal Law § 165.50). The Appellate Division affirmed, 174 A.D.2d 448, 571 N.Y.S.2d 233, and a Judge of this Court granted leave to appeal 79 N.Y.2d 854, 580 N.Y.S.2d 725, 588 N.E.2d 760. The sole issue before us is whether Penal Law § 70.25(2) forbids consecutive sentencing in this case. We conclude it does not and therefore affirm the conviction and sentence.

This case stems from defendant's conduct initially in unlawfully possessing and driving a stolen automobile in the Times Square area of midtown Manhattan on New Year's Eve in 1988. Police officers, alerted to the possible criminal conduct involving the automobile, approached defendant in the vehicle and ordered him to pull over. After at first appearing to cooperate, defendant accelerated the vehicle onto the sidewalk and into a crowd of pedestrians and police officers, injuring several of them.

The subject vehicle, a 1987 Pontiac Grand Am, was stolen from a convenience store in New Rochelle at approximately 10:30 p.m. on December 31, 1988. Approximately two hours later, at about 12:20 a.m., in still densely crowded Times Square, a civilian pedestrian pointed out the Grand Am to a police lieutenant. The stolen vehicle, with defendant Brown at the wheel, was stopped for a red traffic light on 40th Street, a short distance from its intersection with Avenue of the Americas. Police barricades had been set up at that intersection to control New Year's Eve revelers and traffic. The lieutenant and a detective approached the stolen vehicle while defendant was "standing half in and half out of the car", and his brother was sitting in the front passenger seat. The lieutenant ordered defendant to move the car to the right side of the street. Defendant appeared to comply by beginning to drive slowly with the driver's door still ajar. As the vehicle approached the curb, the lieutenant repeated an order for defendant to turn off the ignition and hand over the keys. Defendant continued to drive the car slowly toward the corner of 40th Street and Avenue of the Americas, the location of the police barricades and dense crowds. When the vehicle was only two to three car lengths from the intersection, defendant suddenly accelerated, driving the Grand Am onto the sidewalk and plowing into the barricades and the wall of pedestrians and police. Several people were injured and the vehicle sustained damage. The vehicle came to rest just past the intersection. Though defendant immediately fled into the dense crowd, he returned to the scene shortly thereafter, apparently to ascertain his passenger brother's situation. The police arrested defendant at the scene of the crimes.

Defendant's only argument on appeal is that the trial court lacked the power to sentence him consecutively because both of his convictions, he claims, arose from a "single act". The Appellate Division concluded that consecutive sentences were properly imposed, because "the act of possessing the stolen automobile and the act of driving that automobile into a crowd of people were separate and distinct" (174 A.D.2d 448, 449, 571 N.Y.S.2d 233).

Where a defendant commits "two or more offenses * * * through a single act," trial courts must impose only concurrent sentences (Penal Law § 70.25[2] [emphasis added]. However, trial courts retain consecutive sentence discretion when separate offenses are committed through separate acts, though they are part of a single transaction (see, People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 472 N.E.2d 29; see also, People v. Truesdell, 70 N.Y.2d 809, 811, 523 N.Y.S.2d 429, 517 N.E.2d 1315; People ex rel. Maurer v. Jackson, 2 N.Y.2d 259, 264, 159 N.Y.S.2d 203, 140 N.E.2d 282). An "act" under Penal Law § 15.00(1) is a "bodily movement".

In this case, defendant's possession of the stolen automobile was an act legally separate from his act, after being intercepted by police officers, of driving the stolen vehicle into a crowd of pedestrians on a sidewalk. The act of the possessory crime, though continuing, is distinct for consecutive sentence purposes from the discrete act of reckless endangerment.

The evidence proves that defendant...