THE PEOPLE OF THE STATE OF NEW YORK v. BRYAN JONES

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Supreme Court, Appellate Division, Third Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BRYAN JONES, Appellant.

105154

Decided: November 26, 2014

Before:  Lahtinen, J.P., Stein, McCarthy, Rose and Egan Jr., JJ. Eric K. Schillinger, East Greenbush, for appellant. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

MEMORANDUM AND ORDER

Calendar Date:  October 21, 2014

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered May 10, 2012, convicting defendant upon his plea of guilty of the crime of assault in the second degree (two counts).

Defendant and two codefendants planned to scare certain individuals by discharging firearms near their home in the City of Kingston, Ulster County.   On July 11, 2011 while it was dark, defendant shot a rifle into the air and one of the codefendants fired a shotgun.   Two individuals standing outside the residence were struck by birdshot discharged from the shotgun and were seriously injured.   As a result, defendant, along with his codefendants, was charged in an indictment with multiple crimes.   In satisfaction of the charges, defendant pleaded guilty to two counts of assault in the second degree.   In accordance with the plea agreement, he was sentenced as a second felony offender to two consecutive terms of seven years in prison, followed by five years of postrelease supervision on each count.   He now appeals.

Defendant contends that County Court illegally imposed consecutive sentences because the crimes to which he pleaded guilty arose from a single act, that being the firing of the shotgun which discharged the birdshot that struck the two victims.   The People concede that the sentence is illegal for this reason and we agree.  Penal Law § 70.25(2) provides, in relevant part, that “[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission ․ the sentences

․ must run concurrently” (see generally People v. Laureano, 87 N.Y.2d 640, 643–644 [1996] ).   Here, the evidence presented indicates that both victims were injured by the birdshot discharged by one shot of the shotgun fired by a codefendant.   Defendant's assault convictions arose from this single act (see People v. McFadden, 180 A.D.2d 825, 827 [1992], lv denied 79 N.Y.2d 1004 [1992];  People v. Luster, 148 A.D.2d 305, 306 [1989], lv denied 74 N.Y.2d 666 [1989];  compare People v. Brathwaite, 63 N.Y.2d 839, 843 [1984] ).1  Consequently, the consecutive sentences are illegal and must be modified.

Lahtinen, J.P., Stein, McCarthy, Rose and Egan Jr., JJ., concur.

ORDERED that the judgment is modified, on the law, by directing that defendant's sentences shall run concurrently rather than consecutively, and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court

FOOTNOTES

FN1. We note that this Court upheld consecutive sentences imposed upon one codefendant, inasmuch as his allocution included an admission that multiple shots were fired from the shotgun and, unlike here, no proof was presented that the victims were injured by the same shot (see People v. Moon, 119 AD3d 1293 [2014], lv denied _ NY3d _ [Oct. 29, 2014] )..  FN1. We note that this Court upheld consecutive sentences imposed upon one codefendant, inasmuch as his allocution included an admission that multiple shots were fired from the shotgun and, unlike here, no proof was presented that the victims were injured by the same shot (see People v. Moon, 119 AD3d 1293 [2014], lv denied _ NY3d _ [Oct. 29, 2014] ).

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