People v. Salcedo
| Decision Date | 22 December 1998 |
| Citation | 684 N.Y.S.2d 480,707 N.E.2d 435,92 N.Y.2d 1019 |
| Parties | , 707 N.E.2d 435, 1998 N.Y. Slip Op. 11,379 The PEOPLE of the State of New York, Respondent, v. Dulys SALCEDO, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division should be affirmed.
Defendant was convicted of second degree murder and second and third degree criminal possession of a weapon for events leading up to, and concluding in, the shooting death of Ysidra Rosario, a former girlfriend. There was evidence adduced at trial that defendant became enraged because Rosario had recently ended their seven-year relationship. As Rosario was walking from church on a Manhattan street defendant stopped his vehicle nearby and demanded that she go with him to talk. When she refused and turned away, defendant grabbed a pistol concealed under a cloth in his vehicle and chased her down the street, hiding the weapon from her view by holding it close to his hip. Defendant caught Rosario just inside a grocery store and demanded that she come with him. When she refused and attempted to move away, defendant grabbed her by the arm and threatened her with the gun. As Rosario struggled to free herself, defendant fired a shot past her. Rosario again refused to go with defendant, broke away, and ran down an aisle. Defendant followed, still brandishing the weapon, and repeatedly asked her to leave with him. Finally, defendant cornered Rosario and shot her at point blank range, killing her.
Defendant contends that the courts below erred in imposing consecutive sentences for the murder and second degree weapons possession charges. He argues that, from the moment he picked up the gun until the moment he murdered Rosario, his possession of the weapon was coterminous with the continuous and uninterrupted intent to kill her. Defendant further argues that his possession of the weapon with the intent to kill Rosario cannot be legally separated from the actual killing, and that the two crimes thus arise from the same "act" within the meaning of Penal Law § 70.25(2). We agree with the lower courts and reject defendant's contention.
Penal Law § 70.25(2) 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." Thus, where the crimes are committed through separate and distinct acts, even though part of a single transaction, consecutive sentences are possible regardless of whether the statutory elements of the offenses overlap (People v. Ramirez, 89 N.Y.2d 444, 451, 654 N.Y.S.2d 998, 677 N.E.2d 722).
The mere fact that defendant's possession of the weapon...
To continue reading
Request your trial
-
Salcedo v. Artuz
...finding the trial court properly sentenced petitioner to consecutive terms of imprisonment. See People v. Salcedo, 92 N.Y.2d 1019, 1021, 684 N.Y.S.2d 480, 707 N.E.2d 435 (1998). The court further found that the objection to the jury charge had not been preserved for appellate review. Id. at......
-
People v. Snyder
...863 N.Y.S.2d 143, 149, 893 N.E.2d 449, 455 [2008] [internal quotation marks and citations omitted]; see People v. Salcedo, 92 N.Y.2d 1019, 1021, 684 N.Y.S.2d 480, 707 N.E.2d 435 [1998] ). We find no abuse of discretion or extraordinary circumstances warranting modification in view of the yo......
-
People v. Miller
...of the weapon was a separate and distinct act for which consecutive sentences could be imposed ( see People v. Salcedo, 92 N.Y.2d 1019, 1021–1022, 684 N.Y.S.2d 480, 707 N.E.2d 435;People v. Hurd, 246 A.D.2d 483, 484, 667 N.Y.S.2d 744,lv. denied91 N.Y.2d 1008, 676 N.Y.S.2d 136, 698 N.E.2d 96......
-
People v. Wilson
...sentences imposed on the convictions of assault in the first degree and manslaughter in the first degree (see People v. Salcedo, 92 N.Y.2d 1019, 684 N.Y.S.2d 480, 707 N.E.2d 435 ; cf. People v. Wright, 19 N.Y.3d 359, 948 N.Y.S.2d 228, 971 N.E.2d 358 ). However, while there was no legal impe......