People v. Whittingham
Attorneys and Parties
Brief Summary
Criminal sentencing—whether sentences for attempted assault in the second degree and criminal possession of a firearm may run consecutively when based on the same act.
The Supreme Court, Kings County, imposed consecutive indeterminate terms of 2–4 years for attempted assault in the second degree and criminal possession of a firearm under Indictment No. 75019/22, in addition to other sentences.
The portion of the sentence under Indictment No. 75019/22 directing the terms for attempted assault in the second degree and criminal possession of a firearm to run consecutively to each other; the Appellate Division modified the judgment to make those terms concurrent.
Under Penal Law § 70.25(2) [requires concurrent sentences for two or more offenses committed through a single act or omission, or where one act constitutes one offense and is a material element of the other], the People did not meet their burden to show the offenses were based on separate and distinct acts as reflected in the plea colloquy; the People conceded the error.
Background
Defendant appealed from three July 5, 2023 judgments following guilty pleas: (1) robbery in the third degree (Indictment No. 2706/19); (2) attempted assault in the second degree and criminal possession of a firearm (Indictment No. 75019/22); and (3) disorderly conduct under a Superior Court Information (SCI) No. 76668/22. As a second felony offender, he was sentenced to 3½–7 years for robbery in the third degree; 2–4 years for attempted assault in the second degree and 2–4 years for criminal possession of a firearm, to run consecutively to each other and to the robbery sentence; and 15 days for disorderly conduct, concurrent with all other sentences.
Lower Court Decision
The Supreme Court, Kings County (Tomlinson, J.), accepted the pleas and imposed consecutive sentences for attempted assault in the second degree and criminal possession of a firearm under Indictment No. 75019/22, which also ran consecutively to the robbery sentence, while the disorderly conduct sentence ran concurrently.
Appellate Division Reversal
Modified, on the law, to direct that the sentences for attempted assault in the second degree and criminal possession of a firearm under Indictment No. 75019/22 run concurrently with each other; as so modified, that judgment was affirmed. The judgments under Indictment No. 2706/19 and SCI No. 76668/22 were affirmed. The court held the People failed to establish separate and distinct acts supporting consecutive sentences based on the plea colloquy, and noted the People’s concession. The aggregate sentence, as modified, was not excessive.
Legal Significance
Reaffirms that, under Penal Law § 70.25(2) and People v. Laureano, consecutive sentences are impermissible when the offenses arise from a single act or where one act is a material element of another; the People bear the burden to prove separate and distinct acts, and failure to do so requires concurrent sentencing.
In New York, consecutive sentences cannot be imposed when the convictions stem from the same act unless the prosecution proves separate and distinct conduct; absent that showing, sentences must run concurrently.