People v. Ramirez

• Decision Date: 20 December 1996
• Citation: 654 N.Y.S.2d 998,89 N.Y.2d 444,677 N.E.2d 722
• Parties: , 677 N.E.2d 722 The PEOPLE of the State of New York, Respondent, v. Alex RAMIREZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 998

654 N.Y.S.2d 998

89 N.Y.2d 444, 677 N.E.2d 722

The PEOPLE of the State of New York, Respondent, v. Alex RAMIREZ, Appellant.

Court of Appeals of New York.

Dec. 20, 1996.

James E. Neuman, New York City, for appellant.

Richard A. Brown, District Attorney of Queens County, Kew Gardens (Cheryl Hone and John M. Castellano, of counsel), for respondent.

OPINION OF THE COURT

SMITH, Judge.

The primary issue here is whether Supreme Court's imposition of three consecutive sentences for robbery is permissible under the facts of this case and the Penal Law. ¹

The indictment charged defendant with three counts of robbery against the Mount Vernon Money Center and two individuals, for a total of nine counts of robbery in the first degree (Penal Law § 160.15). The jury found defendant guilty of each of these counts. Supreme Court, exercising its discretionary sentencing power, imposed the following term of imprisonment: sentences on the robbery counts relating to the same victim were to run concurrently and these three groups of concurrent sentences were to run consecutively with each other.

We hold that defendant's sentence must be modified as contrary to the dictates of Penal Law § 70.25(2) in which the Legislature has delimited a court's discretion to impose consecutive sentences for the same criminal acts which constitute multiple offenses. For sentencing purposes, the theft of property belonging to two different owners did not convert one act into two when said property was forcibly stolen from a single person.

The facts are relatively straightforward. On Christmas eve, 1992, Martin Bailey and Kevin Donahue, two off-duty police officers working for the Mount Vernon Money Center, drove into the parking lot of a hotel located in Queens to make a payroll delivery. After parking their vehicle, Bailey walked toward the security booth while Donahue remained with the car to unload the money bags. Without warning, a grey sedan appeared and stopped behind the guards' vehicle. A man exited the sedan while pointing what appeared to be an automatic weapon and ordered both guards to lie face down on the ground. Other men who were similarly armed followed from the sedan.

At their direction, Bailey and Donahue dropped to the pavement. When Bailey started to move toward the security booth again, he was repeatedly shot in the back. Bailey attempted to return fire but lost his grip on his weapon as he staggered to safety. Finally making his way inside the hotel, Bailey collapsed. The gunmen proceeded to remove Donahue's weapon from his waistband. At the same time, Donahue heard rummaging around in the vehicle where he had left the payroll bags belonging to the Money Center. The thieves then hurried into their sedan and sped away from the hotel. Getting to his feet, Donahue discovered that his gun, the payroll and Bailey's gun were all missing.

A jury found defendant guilty of nine counts of robbery in the first degree; and one count each of attempted murder, possession of a weapon in the second degree, possession of a weapon in the fourth degree, and possession of stolen property in the fifth degree. Upon sentencing the defendant, Supreme Court imposed separate sentences for each possession count which were to run concurrently with each other and with the sentence imposed on the attempted murder conviction. The structure of the sentences on the robbery counts was necessarily more complex.

The nine counts of robbery consisted of three counts related to the theft of Donahue's weapon, three related to the theft of Bailey's weapon and three counts related to the theft of the payroll belonging to the Money Center. ² Supreme Court imposed concurrent sentences on the robbery counts that related to the same victim. Under its discretionary sentencing power, Supreme Court determined that the concurrent terms relating to the same victim should run consecutively to sentences relating to the other victims. Thus, Supreme Court imposed three sets of consecutive sentences on the nine robbery counts.

As set forth in the Penal Law, the minimum and maximum sentencing terms for specific crimes reflect a legislative policy choice which delimits judicial sentencing authority. ³ Yet, within these statutory ceilings, a court has broad discretion to impose an appropriate sentence. As this Court noted in People v. Day, "Sentencing courts, in the exercise of their unique judicial function in criminal proceedings, are wisely allocated wide latitude as they are recognized to be in a superior position to dispense proportionate and fair punishment" (73 N.Y.2d 208, 212, 538 N.Y.S.2d 785, 535 N.E.2d 1325). That discretionary power includes the ability to impose consecutive penalties for multiple crimes (Matter of Walker v. Walker, 86 N.Y.2d 624, 629, 635 N.Y.S.2d 152, 658 N.E.2d 1025, citing People v. Ingber, 248 N.Y. 302, 305, 162 N.E. 87). In choosing to exercise its discretion, Supreme Court may properly consider a variety of factors including the number and seriousness of the offenses involved.

As set forth in 1992, the year defendant committed his crimes, Penal Law § 70.30 provided that when multiple sentences run concurrently, "the times served under imprisonment on any of the sentences shall be credited against the minimum periods of all the concurrent sentences, and the maximum terms merge in and are satisfied by discharge of the term which has the longest unexpired time to run" (Penal Law § 70.30[1][a] ). ⁴ Thus, concurrent sentences represent a single punishment measured by the sentence for the highest grade offense into which all concurrent sentences merge (see, People ex rel. Maurer v. Jackson, 2 N.Y.2d 259, 269-270, 159 N.Y.S.2d 203, 140 N.E.2d 282).

In contrast, when consecutive sentences are imposed, "the minimum periods of imprisonment are added to arrive at an aggregate minimum period of imprisonment equal to the sum of all the minimum periods, [and] the maximum terms are added to arrive at an aggregate maximum term equal to the sum of all the maximum terms" (Penal Law § 70.30[1][b] ). Under the consecutive sentences for the robbery counts imposed by Supreme Court, defendant received a term ranging from 37 1/2 years to 75 years. If Supreme Court had, instead, imposed the same sentences to run concurrently, defendant's term would run from 12 1/2 years to 25 years, a maximum period that would be over 10 years less than the minimum sentence actually imposed.

The Penal Law provides that concurrent sentences must be imposed "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" (Penal Law § 70.25[2] ). ⁵ Thus, 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 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212). The Penal Law defines an "act" as a "bodily movement" (People v. Brown, 80 N.Y.2d 361, 364, 590 N.Y.S.2d 422, 604 N.E.2d 1353, citing Penal Law § 15.00[1] ).

We have noted that it is defendant's act or omission which constitutes the offense, the "actus reus," that must inform any inquiry under Penal Law § 70.25(2) (see, Laureano, 87 N.Y.2d, at 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212). Necessarily, a sentencing court must "examine the statutory definitions of the crimes for which defendant has been convicted" to determine whether concurrent sentences are required pursuant to section 70.25(2) (Laureano, 87 N.Y.2d, at 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212). However, even if the statutory elements of multiple offenses overlap, sentences may be imposed to run consecutively when multiple offenses are committed through separate and distinct acts, though they are part of a single transaction (see, Laureano, 87 N.Y.2d, at 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212; People v. Brown, 80 N.Y.2d 361, 364, 590 N.Y.S.2d 422, 604 N.E.2d 1353, supra ). Imposition of consecutive sentences under the latter inquiry must be supported by identifiable facts (Laureano, 87 N.Y.2d, at 644, 642 N.Y.S.2d 150, 664 N.E.2d 1212). Thus, consecutive sentences may be imposed when either the elements of the crimes do not overlap or if the facts demonstrate that the defendant's acts underlying the crimes are separate and distinct.

Applying this analysis to the present facts requires an examination of the statutory elements of the crimes for which defendant was convicted. Under the Penal Law, robbery is a "forcible stealing" in which a defendant "uses or threatens the immediate use of physical force upon another person" (Penal Law § 160.00). Third degree robbery, the lowest degree of robbery defined in article 160 of the Penal Law, is a class D felony with a maximum sentence of seven years (Penal Law §§ 160.05, 70.00[2][d] ). However, when the commission of a robbery includes certain aggravating circumstances "which cause, threaten to cause, or increase the risk of physical injury to another, the Legislature has deemed the crime to be more serious and deserving of greater punishment" (People v. Hedgeman, 70 N.Y.2d 533, 538, 523 N.Y.S.2d 46, 517 N.E.2d 858). For example, a robbery may be elevated to the first degree, a class B felony, when the defendant causes "serious physical injury" to any person who is not a participant in the crime (Penal Law § 160.15[1] ), is armed with a deadly weapon (Penal Law § 160.15[2] ) or displays what appears to be a firearm (Penal Law § 160.15[4] ).

Here, a jury determined that such aggravating circumstances were present and defendant was convicted of nine counts of robbery in the first degree. Specifically, defendant was convicted of three counts of robbery relating to Donahue under Penal Law §§ 160.15(1), (2) and (4), with the same three provisions of the Penal Law charged in the three counts relating...