People v. Morrison
| Decision Date | 24 January 2002 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>JOHN MORRISON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Upon defendant's guilty plea to the charges contained in a multicount indictment arising out of the theft and unauthorized use of a credit card, he was sentenced as a second felony offender to a total of seven prison terms of 2 to 4 years each. Two of the terms were concurrent with each other and consecutive to a third; the remaining four terms were concurrent with each other and consecutive to the other terms. The result was an aggregate term of 6 to 12 years. Defendant's motion to set aside the sentence was denied and he now appeals from both the judgment of conviction and the denial of his postconviction motion.
We reject defendant's contention that Penal Law § 70.25 (1) precluded County Court from sentencing him to multiple prison terms that, according to defendant, were both concurrent and consecutive. Penal Law § 70.25 (1) provides that when multiple sentences of imprisonment are imposed, the sentences "shall run either concurrently or consecutively with respect to each other." The disjunctive statutory language prohibits the splitting of a sentence of imprisonment for one crime so that part of the prison term is concurrent with prison terms imposed for other crimes and the remainder is consecutive (see, People v Bacalocostantis, 148 AD2d 842). However, a court imposing multiple sentences may, as here, separate the prison terms into groups, with the terms to be served concurrently within the group and consecutively to one or more other groups (see, People v Jeanty [Johnson] [Black] [Bernard], 268 AD2d 675, 679-680, lvs denied 94 NY2d 945, 949). Defendant's narrow reading of the statute would require a court imposing multiple sentences to choose between making all of the prison terms concurrent or all of them consecutive, which would unduly restrict the sentencing court's discretion beyond that intended by the statute.
We also reject defendant's claim that none of the sentences imposed on the forgery in the second degree counts could run consecutively to the sentence imposed on the grand larceny in the fourth degree count which was based on the theft of the credit card he used to commit each of the forgeries. Pursuant to Penal Law § 70.25 (2), consecutive sentences may not be imposed "(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 NY2d 640, 643). Thus, a "[c]onsecutive sentence is...
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