People v. Davis

• Decision Date: 26 April 1991
• Citation: 569 N.Y.S.2d 999,165 A.D.2d 610
• Parties: PEOPLE of the State of New York, Respondent, v. John DAVIS, a/k/a John Daniels, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 999

569 N.Y.S.2d 999

165 A.D.2d 610

PEOPLE of the State of New York, Respondent, v. John DAVIS, a/k/a John Daniels, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

April 26, 1991.

Edward J. Nowak by Drew DuBrin, Rochester, for appellant.

Howard R. Relin by Loretta Courtney, Rochester, for respondent.

Before DILLON, P.J., and DOERR, BOOMER, PINE and LAWTON, JJ.

BOOMER, Justice:

Defendant has been convicted of two counts of burglary in the first degree--the first, under subdivision 2 of Penal Law § 140.30, charging him with causing physical injury to any person not a participant in the burglary, and the second, under subdivision 4, charging him with displaying what appears to be a firearm. These are "non-inclusory concurrent counts" and we have no authority to vacate the conviction on one of the counts, as defendant requests.

A statutory provision that defines the offense named by providing in different subdivisions or paragraphs different ways in which such offense may be committed defines a separate offense in each such subdivision or paragraph (CPL 200.30[2]. Subdivisions 2 and 4 of Penal Law § 140.30 provide different ways in which the offense of burglary in the first degree may be committed and, thus, each defines a separate offense. The separate counts under subdivisions 2 and 4 are concurrent counts because they were committed through a single act or omission (CPL 300.30[3]; Penal Law § 70.25[2]. They are non-inclusory concurrent counts because one is not greater than the other and one does not contain all of the elements of the other (CPL 300.30[4].

Whereas, with respect to inclusory concurrent counts, a verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count (CPL 300.40[3][b], and we have, on appeal, properly dismissed lesser included concurrent counts where the jury has found a defendant guilty of the higher count, there is no authority permitting us to dismiss non-inclusory concurrent counts. The trial court, in its discretion, may submit to the jury one or more non-inclusory concurrent counts, and any such count not submitted is deemed dismissed (CPL 300.40[3][a]. We have no authority to dismiss such count after the trial court has submitted it to the jury unless the trial court abused its discretion in submitting the multiple counts (see, People v. Brown, 67 N.Y.2d 555, 560-561, 505 N.Y.S.2d 574, 496 N.E.2d 663, cert. denied 479 U.S. 1093, 107 S.Ct. 1307, 94 L.Ed.2d 161 [where the elements of both of the submitted counts were identical]. Here, the court properly submitted both counts to the jury because the jury could have found defendant guilty of one count and not guilty of the other. The jury may, for instance, have found that defendant entered the building unlawfully with intent to commit a crime therein and that he displayed a weapon, but that he did not injure a person. Thus, the trial court did not abuse its discretion in submitting both counts to the jury.

Not only do we lack authority to dismiss one of the counts, but it is inappropriate for us to do so. The jury found that defendant committed both acts and we should not, by dismissal, expunge one of the acts except by reversal if the verdict is not supported by the evidence or is against the weight of the evidence. Dismissal of one count in this instance could cause substantial prejudice to the People. Should the case be appealed by defendant to the Court of Appeals, it is conceivable that the Court of Appeals could reverse the conviction on the one remaining count of burglary because of insufficiency of evidence, even though the other count dismissed by us is supported by sufficient evidence.

It is apparent that the legislature did not intend to give the Appellate Division the authority to dismiss one of two or more non-inclusory concurrent counts merely because they arise out of the same act. Not only did it make no provision for such dismissal, it expressly provided for separate but concurrent sentences on each non-inclusory concurrent count. CPL 380.20 provides that "the court must pronounce sentence on each count" (see, People v. Green, 61 A.D.2d 1138, 402 N.Y.S.2d 886) and, in the case of multiple concurrent counts, the sentences must run concurrently (CPL 300.30[3]; Penal Law § 70.25[2].

Concern that defendant will be prejudiced by being convicted of two offenses arising out of the same act is misplaced; the legislature has expressly authorized such convictions and has avoided undue prejudice by providing for concurrent sentencing. Nor can we assume that defendant will be unduly prejudiced when appearing before the parole board or when being sentenced after conviction of a subsequent crime. The parole board and the sentencing court will have the facts of the prior convictions before them and will know that the multiple convictions arose out of one incident. They are entitled to know, moreover, that when defendant committed the burglary, he not only displayed a weapon, but also injured a person. Dismissal of the separate count involving the display of a firearm would be especially inappropriate because that offense is an armed felony, which subjects defendant to enhanced punishment (see, Penal Law § 70.02[4]; CPL 1.20[41].

Courts have sanctioned multiple convictions of non-inclusory concurrent counts of homicide (see, People v. Frazier, 40 A.D.2d 555, 339 N.Y.S.2d 136, [felony murder and intentional murder]; People v. Barnes, 162 A.D.2d 1039, 558 N.Y.S.2d 339, lv. denied 76 N.Y.2d 890, 561 N.Y.S.2d 553, 562 N.E.2d 878 [felony murder and depraved indifference murder]; People v. Zane, 152 A.D.2d 976, 543 N.Y.S.2d 777, lv. denied 74 N.Y.2d 900, 548 N.Y.S.2d 433, 547 N.E.2d 960 [felony murder and depraved indifference murder]; People v. Pierce, 150 A.D.2d 948, 541 N.Y.S.2d 866, lv. denied 74 N.Y.2d 817, 546 N.Y.S.2d 575, 545 N.E.2d 889 [felony murder and depraved indifference murder], of robbery (see, People v. Rivera, 157 A.D.2d 540, 549 N.Y.S.2d 728, lv. denied 76 N.Y.2d 795, 559 N.Y.S.2d 1000, 559 N.E.2d 694 [armed with a deadly weapon, use or threatened use of dangerous instrument, aided by another person actually present]; People v. Frazier, 156 A.D.2d 198, 548 N.Y.S.2d 456, lv. denied 75 N.Y.2d 868, 553 N.Y.S.2d 300, 552 N.E.2d 879 [displaying what appears to be a gun, aided by another person actually present]; People v. Gerino, 157 A.D.2d 570, 550 N.Y.S.2d 313 [aided by another person actually present, causing physical injury to another person], and of operating a motor vehicle while under the influence of alcohol (see, People v. Thornton, 130 A.D.2d 78, 517 N.Y.S.2d 807, lv. denied 70 N.Y.2d 755, 520 N.Y.S.2d 1031, 514 N.E.2d 1383; People v. McDonough, 39 A.D.2d 188, 333 N.Y.S.2d 128; People v. Evans, 75 Misc.2d 726, 348 N.Y.S.2d 826, affd. 79 Misc.2d 130, 362 N.Y.S.2d 440 [Vehicle & Traffic Law § 1192, subdivisions 2 and 3]. There is no reason for a different rule in the case of multiple non-inclusory concurrent counts of burglary.

Defendant has argued that "since there [is] but one entry [defendant] can only be convicted of one count of burglary" (People v. Martinez, 126 A.D.2d 942, 511 N.Y.S.2d 988, lv. denied 69 N.Y.2d 952, 516 N.Y.S.2d 1036, 509 N.E.2d 371; see also, People v. Sillaway, 144 A.D.2d 959, 534 N.Y.S.2d 615; People v. McCray, 61 A.D.2d 860, 861, 401 N.Y.S.2d 908). The rule cited appears to have its origin in the case of People v. Perrin, 56 AD2d 957, 392 N.Y.S.2d 723. In Perrin, supra, the multiple counts were not, as here, under different subdivisions of the burglary section. They were under the same subdivision and they charged but one crime. In Perrin, supra, defendant was charged in one count of...