People v. Miller

• Decision Date: 17 June 1999
• Citation: 693 N.Y.S.2d 646
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard MILLER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 646

693 N.Y.S.2d 646

The PEOPLE of the State of New York, Respondent, v. Richard MILLER, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

June 17, 1999.

Darrell Bowen, Plattsburgh, for appellant.

Penelope D. Clute, District Attorney, Plattsburgh, for respondent.

Before: CARDONA, P.J., MERCURE, PETERS, SPAIN and CARPINELLO, JJ.

SPAIN, J.

Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered March 2, 1998, convicting defendant upon his plea of guilty of the crimes of attempted burglary in the second degree, attempted criminal use of a firearm in the second degree, unlawful imprisonment in the first degree and menacing in the second degree (two counts).

Based upon a plea bargain, defendant pleaded guilty to attempted burglary in the second degree, attempted criminal use of a firearm in the second degree, unlawful imprisonment in the first degree and two counts of menacing in the second degree in satisfaction of a six-count indictment arising out of a series of events which occurred at the residence of his former girlfriend. Pursuant to the plea bargain, defendant was sentenced to concurrent and consecutive terms of imprisonment aggregating 3 1/2 to 8 years. On appeal defendant contends that concurrent sentences for all crimes were required by Penal Law § 70.25.

Defendant was sentenced to 2 1/2 to 5 years' imprisonment on attempted burglary in the second degree, a class D violent felony. On one of the other crimes, he was sentenced to a consecutive term of 1 to 3 years' imprisonment, with the remaining terms concurrent. It is not clear from the record which of the other crimes was the basis for the consecutive sentence. During the plea proceeding, there was some initial discussion that the firearm crime would run consecutively, but the District Attorney concluded that the consecutive sentence would have to be imposed on the unlawful imprisonment crime. At sentencing, however, the Assistant District Attorney stated that the plea bargain required a consecutive sentence on the firearm crime. County Court indicated its intent to impose the agreed-upon sentence, but thereafter stated that the sentences of 1 to 3 years on each of the two menacing counts were concurrent with each other and consecutive to the other terms. The commitment, which contains several errors, indicates that the consecutive sentence was imposed on the firearm crime.

Defendant contends that regardless of which crime was the basis for the consecutive sentence, all terms must be concurrent because the crimes arose out of a single criminal transaction and all of the crimes involved defendant's possession or use of a loaded rifle. Where, as here, the building entered by defendant is a dwelling, possession of a deadly weapon is not an element of burglary in the second degree (see, Penal Law § 140.25 ). The burglary, however, is a material element of unlawful use of a firearm in the second degree (see, Penal Law § 265.08) and, therefore, we agree...