PEOPLE v. ANONYMOUS (2023)

Judgment, Supreme Court, New York County (Melissa Jackson, J.), rendered December 12, 2018, convicting defendant, after a jury trial, of manslaughter in the first degree and two counts of criminal possession of a weapon in the second degree, and sentencing him to a term of 25 years on the manslaughter conviction, to run concurrently with a term of 15 years on the first weapon possession conviction (possession with intent to use unlawfully) and consecutively with a term of 7 years on the second weapon possession conviction (simple possession), unanimously modified, on the law and as a matter of discretion in the interest of justice, to the extent of vacating all of the sentences, remanding the matter for resentencing on each of the convictions, and otherwise affirmed.

As the People concede, the court improperly based the sentence on the manslaughter conviction on its stated belief that defendant intended to kill the victim.  Intent to kill is an element of murder in the second degree, of which defendant was acquitted, and not manslaughter in the first degree, of which defendant was convicted (compare Penal Law § 125.25[1], with Penal Law § 125.20[1]).  Because the sentence was based on conduct of which defendant had been acquitted, resentencing on the manslaughter conviction is required (see People v. Black, 33 A.D.3d 338, 342–343, 821 N.Y.S.2d 593 [1st Dept. 2006];  People v. Wilkonson, 281 A.D.2d 373, 374–375, 724 N.Y.S.2d 18 [1st Dept. 2001], lv denied 96 N.Y.2d 926, 732 N.Y.S.2d 643, 758 N.E.2d 669 [2001]).  Although defendant's challenge to this sentence is unpreserved, we reach it in the exercise of our interest of justice power, which the People expressly do not oppose.

As the People also concede, the imposition of consecutive sentences on the conviction for manslaughter and the conviction for simple possession of a weapon under Penal Law § 265.03(3) was improper.  The sentences should have run concurrently, since the People did not demonstrate that the act of weapon possession was separate from the act of manslaughter (see Penal Law § 70.25[2];  People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212 [1996]).  There was no evidence presented at the trial establishing that defendant possessed the firearm before shooting the victim (see People v. Bailey, 213 A.D.3d 499, 501, 183 N.Y.S.3d 92 [1st Dept. 2023], lv denied 40 N.Y.3d 933, 194 N.Y.S.3d 751, 215 N.E.3d 1192 [2023];  People v. Rosario, 26 A.D.3d 271, 273–274, 810 N.Y.S.2d 55 [1st Dept. 2006], lv denied 6 N.Y.3d 897, 817 N.Y.S.2d 632, 850 N.E.2d 679 [2006];  see also People v. Brown, 21 N.Y.3d 739, 750–751, 977 N.Y.S.2d 723, 999 N.E.2d 1168 [2013]).  In light of this, along with the improper sentence on the manslaughter conviction, we remand the matter for resentencing on all three of defendant's convictions.