PEOPLE v. WILLIAMS (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Eugene M. Guarino, J.), rendered May 16, 2023, convicting him of robbery in the third degree and criminal possession of stolen property in the fourth degree, upon his plea of guilty, and sentencing him to consecutive indeterminate terms of imprisonment of two to four years on each conviction.

ORDERED that the judgment is modified, on the law, by providing that the sentence imposed on the conviction of robbery in the third degree shall run concurrently with the sentence imposed on the conviction of criminal possession of stolen property in the fourth degree;  as so modified, the judgment is affirmed.

In accordance with Penal Law § 70.25(2), “ ‘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. McGovern, 42 N.Y.3d 532, 536, 224 N.Y.S.3d 382, 249 N.E.3d 732, quoting People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212;  see People v. Brown, 193 A.D.3d 758, 141 N.Y.S.3d 871).  “Under the first prong, ‘where the actus reus is a single inseparable act that violates more than one statute, a single punishment must be imposed’ ” (People v. McGovern, 42 N.Y.3d at 536, 224 N.Y.S.3d 382, 249 N.E.3d 732 [alteration omitted], quoting People v. Rodriguez, 25 N.Y.3d 238, 244, 10 N.Y.S.3d 495, 32 N.E.3d 930).  “The People bear the burden of establishing the legality of consecutive sentencing by ‘identifying the facts which support their view’ that the crimes were committed by separate acts” (People v. Rodriguez, 25 N.Y.3d at 244, 10 N.Y.S.3d 495, 32 N.E.3d 930, quoting People v. Laureano, 87 N.Y.2d at 644, 642 N.Y.S.2d 150, 664 N.E.2d 1212).

“As to the second prong, courts ‘first look to the statutory definitions of the crimes at issue to discern whether the actus reus elements overlap’ ” (People v. McGovern, 42 N.Y.3d at 536, 224 N.Y.S.3d 382, 249 N.E.3d 732, quoting People v. Rodriguez, 25 N.Y.3d at 244, 10 N.Y.S.3d 495, 32 N.E.3d 930).  “ ‘Reference to the fact-specific circumstances and proof of a crime to determine whether, under the second statutory prong, one offense is a material element of a second is not the test for consecutive sentencing purposes.’  Rather, ‘the commission of one offense is a material element of a second for restrictive sentencing purposes if, by comparative examination, the statutory definition of the second crime provides that the first crime is also a necessary component in the legislative classification and definitional sense’ ” (People v. Brahney, 29 N.Y.3d 10, 14, 51 N.Y.S.3d 9, 73 N.E.3d 349 [citation omitted], quoting People v. Day, 73 N.Y.2d 208, 211, 538 N.Y.S.2d 785, 535 N.E.2d 1325).

“Even if the statutory elements of the offenses do overlap, ‘the People may yet establish the legality of consecutive sentencing by showing that the “acts or omissions” committed by defendant were separate and distinct acts’ ” (People v. Brown, 193 A.D.3d at 759, 141 N.Y.S.3d 871, quoting People v. Laureano, 87 N.Y.2d at 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212;  see People v. Brahney, 29 N.Y.3d at 14–15, 51 N.Y.S.3d 9, 73 N.E.3d 349).

Based on the superior court information and the facts adduced during the plea colloquy, the People failed to establish that the defendant did not commit the robbery and possession of stolen property offenses through the single and inseparable act of seizing the complainant's property (see Penal Law §§ 10.00[8];  155.05, 160.00;  People v. Sturkey, 77 N.Y.2d 979, 980, 571 N.Y.S.2d 898, 575 N.E.2d 384;  People v. Bethea, 56 A.D.3d 485, 486, 865 N.Y.S.2d 922;  cf.  People v. Brown, 193 A.D.3d at 759, 141 N.Y.S.3d 871).  Accordingly, the Supreme Court should have directed that the sentence imposed on the conviction of robbery in the third degree was to run concurrently with the sentence imposed on the conviction of criminal possession of stolen property in the fourth degree.

The parties’ remaining contentions need not be reached in light of our determination.

DILLON, J.P., MILLER, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur.