People v. Krasnewicz

• Decision Date: 24 January 1986
• Parties: PEOPLE of the State of New York, Respondent, v. Otto M. KRASNEWICZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 670

498 N.Y.S.2d 670

116 A.D.2d 1016

PEOPLE of the State of New York, Respondent, v. Otto M. KRASNEWICZ, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Jan. 24, 1986.

Otto M. Krasnewicz, Attica, for appellant.

John T. Ward, Jr., Mayville, for respondent.

Before CALLAHAN, J.P., and DOERR, BOOMER, PINE and SCHNEPP, JJ.

MEMORANDUM:

Following his pleas of guilty to the charges of conspiracy in the second degree and criminal facilitation in the second degree, defendant was sentenced to consecutive terms of 8 to 24 years on the conspiracy conviction and 2 to 6 years on the conviction of criminal facilitation. Defendant's conviction of criminal facilitation was in satisfaction of a charge of murder in the second degree and his conviction of conspiracy arose out of his agreement with another to commit the murder.

Defendant's principal point on appeal is that he was illegally sentenced because the sentences for the two crimes cannot run consecutively. We disagree. Where two or more offenses are 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" (Penal Law § 70.25). Conversely, where the offenses are not committed through a single act or omission, and not through an act or omission which in itself constitutes one of the offenses and which was a material element of the other, the sentences may run consecutively.

The elements of the offense of conspiracy in the second degree are: an agreement with one or more persons to cause conduct constituting a class A felony to be performed, with intent that such conduct be performed (Penal Law § 105.15), and the commission of an over act in furtherance thereof (Penal Law § 105.20). The elements of the crime of criminal facilitation in the second degree (Penal Law § 115.05) are: while believing it probable that one is rendering aid to a person who intends to commit a class A felony, engaging in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit such class A felony. The crime of conspiracy is an offense separate and apart from the crime that is the object of the conspiracy (People v. McGee, 49 N.Y.2d 48, 57, 424 N.Y.S.2d 157, 399 N.E.2d 1177, cert. denied 446 U.S. 942, 100 S.Ct. 2166, 64 L.Ed.2d 797; see also, People v. Potwora, 44 A.D.2d 207, 211, 354...