PEOPLE v. GRANT (2025)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Albany County (William Little, J.), rendered August 10, 2022, convicting defendant upon his plea of guilty of the crime of assault in the second degree (two counts).

On June 30, 2020, defendant attacked his victim with a metal baton before slashing him with a knife, and the victim ultimately died from his injuries while in the hospital.  Thereafter, defendant was charged in an indictment with manslaughter in the first degree, two counts of assault in the second degree and two counts of criminal possession of a weapon in the third degree.  In full satisfaction of the aforementioned charges, defendant pleaded guilty to two counts of assault in the second degree and agreed to waive his right to appeal both orally and in writing.  In accordance with the terms of the plea agreement, defendant was sentenced, as a second felony offender, to two consecutive six-year prison terms, to be followed by five years of postrelease supervision.  Defendant appeals.

Defendant argues that County Court was required to run his sentences on counts two and three concurrently.  As an initial matter, defendant's contention that County Court illegally imposed consecutive sentences is not foreclosed by his unchallenged appeal waiver or guilty plea (see People v. Gatchell, 208 A.D.3d 1549, 1550, 175 N.Y.S.3d 364 [3d Dept. 2022];  People v. Light, 184 A.D.3d 904, 906, 125 N.Y.S.3d 185 [3d Dept. 2020]), and preservation is not required (see People v. Nieves, 2 N.Y.3d 310, 315–316, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004]).  “Penal Law § 70.25(2) ․ mandate[s] that concurrent sentences 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. Hinchey, 236 A.D.3d 1101, 1103, 229 N.Y.S.3d 252 [3d Dept. 2025], quoting People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212 [1996]).  “However, consecutive sentences may be imposed when the acts involved, though part of a continuous course of conduct, can be separated into separate and distinct events” (People v. Moon, 119 A.D.3d 1293, 1294–1295, 990 N.Y.S.2d 98 [3d Dept. 2014] [internal quotation marks and citations omitted], lv denied 24 N.Y.3d 1004, 997 N.Y.S.2d 122, 21 N.E.3d 574 [2014];  see People v. Brahney, 29 N.Y.3d 10, 14–15, 51 N.Y.S.3d 9, 73 N.E.3d 349 [2017];  People v. Rodriguez, 25 N.Y.3d 238, 244, 10 N.Y.S.3d 495, 32 N.E.3d 930 [2015];  People v. Banks, 181 A.D.3d 973, 977, 121 N.Y.S.3d 381 [3d Dept. 2020], lv denied 35 N.Y.3d 1025, 126 N.Y.S.3d 21, 149 N.E.3d 859 [2020]).

Defendant here allocuted to separate and distinct acts of hitting the victim with a metal baton and thereafter cutting the victim with a knife – acts that were temporally distinct and which resulted in different injuries to the victim – and pleaded guilty with the understanding that the sentences for each assault would be imposed consecutively (see People v. Moon, 119 A.D.3d at 1295, 990 N.Y.S.2d 98).  County Court did not err under these circumstances in concluding that the crimes to which defendant pleaded guilty involved separate and distinct acts and, thus, in imposing consecutive sentences (see People v. McKnight, 16 N.Y.3d 43, 49, 917 N.Y.S.2d 594, 942 N.E.2d 1019 [2010];  People v. Harris, 235 A.D.2d 941, 941, 653 N.Y.S.2d 403 [3d Dept. 1997];  People v. Fortuna, 188 A.D.2d 683, 684, 591 N.Y.S.2d 212 [3d Dept. 1992], lv denied 81 N.Y.2d 839, 595 N.Y.S.2d 738, 611 N.E.2d 777 [1993];  People v. Bink, 93 A.D.2d 920, 921, 462 N.Y.S.2d 300 [3d Dept. 1983];  see also People v. Brathwaite, 63 N.Y.2d 839, 842–843, 482 N.Y.S.2d 253, 472 N.E.2d 29 [1984]).

ORDERED that the judgment is affirmed.

Garry, P.J., Egan Jr., Aarons, Reynolds Fitzgerald and McShan, JJ., concur.