People v. Couser
| Decision Date | 22 November 2016 |
| Citation | 68 N.E.3d 26,28 N.Y.3d 368 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Phillip COUSER, Appellant. (Appeal No. 1.) The People of the State of New York, Respondent, v. Phillip Couser, Appellant. (Appeal No. 2.). |
| Court | New York Court of Appeals Court of Appeals |
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of counsel), for appellant in the first and second above-entitled actions.
Sandra Doorley, District Attorney, Rochester (Kelly Christine Wolford and Geoffrey Kaeuper of counsel), for respondent in the first and second above-entitled actions.
In the first of these appeals we must consider whether Penal Law § 70.25(2) permits consecutive or concurrent sentencing for defendant's convictions. Specifically, we must resolve whether defendant's convictions for attempted robbery and robbery were properly ordered to run consecutively by the trial court. In the second appeal, we must consider whether defense counsel's advice to defendant, prior to taking an Alford plea to attempted murder, that his sentence after conviction for that crime could be directed to run consecutively to his other sentences rendered counsel's assistance ineffective. Additionally, we must determine whether defendant's Alford plea was knowing, intelligent, and voluntary. We hold that defendant's consecutive sentences for robbery and attempted robbery, as modified by the Appellate Division, meet the requirements of Penal Law § 70.25(2) as explained by this Court in People v. Laureano , 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212 (1996). We also hold that defendant received effective assistance of counsel, and defendant's Alford plea was knowing, intelligent and voluntary.
Defendant's convictions stem from his actions in a City of Rochester park on the evening of August 16, 2008. Defendant, along with three others, approached a group of five individuals as they were walking to a vehicle. Defendant pulled out a gun and told everyone to get on the ground or he would kill them. Defendant cocked the gun, placed it at the rear of one of the victims's head as that victim was lowering himself to the ground, and fired one shot. The victim of the shooting survived, as the bullet only grazed the back of his head because he flinched when defendant fired the gun. The purse of one of the other victims was taken during the incident. When defendant and his companions left, the police were called and the shooting victim was taken to the hospital. The police recovered a handgun in nearby bushes and later verified that it was the gun used in the shooting. Following an unrelated search of defendant's home in November 2008 for suspected criminal possession of a weapon, defendant was interrogated by an officer who suspected defendant might have been involved in the park robbery a few months prior. Defendant admitted to possessing a gun in the park on the date of the robbery and intending to rob the group. He claimed that he did not intend to kill anyone. Defendant was charged with one count of first-degree attempted murder (see Penal Law §§ 110.00, 125.27[1][a][vii] ), one count of first-degree robbery (see Penal Law § 160.15[4] ), two counts of second-degree criminal possession of a weapon (see Penal Law § 265.03[1][b] ; [3] ), three counts of first-degree attempted robbery (see Penal Law §§ 110.00, 160.15[4] ), and third-degree criminal possession of a weapon (see Penal Law § 265.02 [1] ).
During trial, four of the victims testified for the People. Three of the four victims testified that they heard defendant cock the gun before pointing the gun at the shooting victim. However, defendant, who testified on his own behalf, stated that he did not point the gun at anyone in particular and the gun accidentally discharged. The jury was unable to reach a verdict on the first-degree attempted murder charge, but found defendant guilty of the remaining charges. Defendant consented to a mistrial as to the attempted murder and accepted a partial verdict.
Defendant was sentenced as follows: a determinate term of 18 years with five years of postrelease supervision (PRS) for robbery; determinate terms of 15 years with five years of PRS for each count of criminal possession of a weapon in the second degree; determinate terms of 15, 10, and 5 years, with five years of PRS each, for the attempted robbery counts; and an indeterminate term of 2 to 6 years for criminal possession of a weapon in the third degree. The court directed the sentences for the robbery and the two counts of criminal possession of a weapon in the second degree to run concurrently with each other but consecutively to the remaining sentences. The court further directed that the sentence for each attempted robbery count was to run consecutively to all other sentences, and that the sentence for criminal possession of a weapon in the third degree was to run concurrently with all other sentences. The aggregate sentence, therefore, was 48 years with five years of PRS.
Following a recitation of the facts underlying the attempted murder charge by defense counsel and the People, and a recitation of what the testimony would be upon retrial, the court asked defendant "[i]s that correct ... ?" After defendant responded "Yes," the court accepted the Alford plea, stating that the discussion of the trial evidence and defendant's intention to take the plea satisfied the requirements to which the court was legally obligated to adhere. The court asked defendant whether he was aware of what was taking place and asked him if he wanted to say anything. Defendant responded "No," and acknowledged that he was pleading guilty. The court ordered the promised sentence of 15 years to life to run concurrently with the previously imposed sentences. Defendant appealed separately from his convictions following the jury verdict and his conviction following the Alford plea.
On the first appeal, the Appellate Division modified the judgment of conviction by directing the sentences imposed on the counts of attempted robbery to run concurrently with each other and consecutively to the sentence imposed on the completed robbery, and otherwise affirmed (126 A.D.3d 1419, 5 N.Y.S.3d 787 [4th Dept.2015] ). The Court concluded that the actus reus of all the attempted robbery counts "was a single act constituting one offense, and thus the sentences on those counts must run concurrently with each other" (126 A.D.3d at 1421, 5 N.Y.S.3d 787 ).2 The Court took no issue with the sentencing on the remaining counts, noting that the trial court properly exercised its discretion in directing that the sentences for robbery and attempted robbery run consecutively. In the second appeal, the Appellate Division affirmed (126 A.D.3d 1423, 3 N.Y.S.3d 685 [4th Dept.2015] ), concluding that "a concurrent sentence was not required for the attempted murder count ... because the shooting of the male victim was an act separate and distinct from the" robbery and attempted robbery counts (126 A.D.3d at 1422, 5 N.Y.S.3d 787 ). Accordingly, the Court held that defense counsel was not ineffective for advising defendant that a sentence for attempted murder could run consecutively to his other sentences, and that defendant's plea in exchange for a concurrent minimum sentence was knowing, intelligent and voluntary. We agree.
In the first appeal, defendant argues that Penal Law § 70.25(2) mandates concurrent sentencing under these facts because the statutory elements of the robbery and attempted robbery counts are, by definition, identical or overlapping, and defendant engaged in a single act to attempt and ultimately execute the robbery—waving his gun.
Penal Law § 70.25(2) provides: "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." We have interpreted that provision to require that "sentences imposed for two or more offenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other" (People v. Laureano, 87 N.Y.2d at 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212 ; see People v. Battles, 16 N.Y.3d 54, 58, 917 N.Y.S.2d 601, 942 N.E.2d 1026 [2010] ).
In People v. Laureano, we explained that when "determining whether concurrent sentences are required, the sentencing court must first examine the statutory definitions of the crimes for which defendant has been convicted" (87 N.Y.2d at 643, 642 N.Y.S.2d 150, 664...
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