People v Malave
Annotate this CaseDecided on June 28, 2012
Supreme Court, Bronx County
The People of the State of New York
against
Dwayne Malave, Defendant.
3019-1992
Defendant pro se
Lindsey Ramistella
Assistant District Attorney
Office of the Bronx District Attorney
Richard Lee Price, J.
By motion submitted March 1, 2012, defendant moves pro se to set aside and modify his sentence pursuant to Criminal Procedure Law § 440.20, on the grounds that the imposition of consecutive sentences was illegal under Penal Law § 70.25 (2). For the following reasons, defendant's motion must be denied.
Background and Procedural History
On March 26, 1992, the defendant, after being hired by Anderson Rodriguez's (the deceased) wife to murder Rodriguez, gained access to his apartment by posing as a police officer there to effect a lawful arrest. Once inside, the defendant lured Rodriguez into the hallway, fatally shooting him three times.
On March 21, 1995, judgment was entered against the defendant by this court, upon his conviction after a jury trial of murder in the second degree (Penal Law § 125.25 [1]), criminal possession of a weapon in the second degree (Penal Law § 265.03) and criminal impersonation in the first degree (Penal Law § 190.26). Defendant was sentenced on his murder conviction to an indeterminate term of life imprisonment with a mandatory minimum period of twenty-five years. For his conviction of criminal possession of a weapon, this court imposed a concurrent indeterminate sentence of fifteen years imprisonment with a mandatory minimum period of five years. With regard to his conviction for criminal impersonation, defendant was consecutively [*2]sentenced to an indeterminate term of four years imprisonment with a mandatory minimum period of one and one-third years.
On April 4, 2000, the Appellate Division, First Department, affirmed his conviction and sentence (People v Malave, 271 AD2d 207 [1st Dept 2000]). On January 28, 2008, New York Court of Appeals Chief Judge Judith Kaye denied defendant's application for leave (People v Malave, 95 NY2d 836 [2000]).
Defendant now contends that this court's imposition of the consecutive sentence was illegal under Penal Law § 70.25 (2) because the crimes of murder and criminal impersonation shared a common actus reus — defendant's single act of "impersonating a police officer as a ruse to lure the victim out of his residence to murder him" (see Defendant's Affidavit in Support, p. 4). This court disagrees.
Discussion
Preliminarily, this court notes that defendant's claim is unpreserved. The sentencing minutes, which defendant provides, reflect that counsel addressed the issue of consecutive sentences, although he did so by arguing that the People's request appeared unduly harsh considering they had offered more lenient sentences to individuals who, in his view, were more culpable than the defendant. Counsel did not, however, make any argument or raise any objection to the imposition of consecutive sentences. The absence of such a record could, by itself, result in denial of defendant's motion.
Even if counsel had created an adequate record, however, this court need not entertain his claim. As the District Attorney correctly notes, on direct appeal appellate counsel did not assert the claim that the consecutive sentence was illegal. Affirming defendant's conviction, the Appellate Division, relative to sentencing, stated "we perceive no abuse of sentencing discretion" (People v Malave, 271 A.D2d 204). Notably, defendant fails to provide any explanation why this claim was neither asserted at sentencing nor raised on direct appeal.
Irrespective of any procedural issues, defendant's claim is entirely without merit. Penal Law § 70.25 requires that concurrent sentences be imposed "for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other" (Penal Law § 70.25 [2]). In other words, if the act is the same for both offenses, or if the act constituting one offense is a material element of another offense, then consecutive sentences may not be imposed. Consecutive sentences may be imposed, however, when either the elements do not overlap or the facts demonstrate that the underlying acts are separate and distinct (People v Ramirez, 89 NY2d 444, 451 [1996]. Even where the statutory elements overlap, consecutive sentencing is proper provided the acts committed by defendant were separate and distinct, notwithstanding whether they are part of a single transaction (People v Laureano, 87 NY2d 640, 643 [1996]; People v Brown, 80 NY2d 361, 364 [1992]; see also People v Azaz, 10 NY3d 873, 875 [2008]). In fact, as noted by the Court of Appeals, "[t]here is no authority to support the notion that where an actus reus consists of repetitive discrete acts . . . that these acts somehow merge such that they lose their individual character where the same criminal intent . . . inspir[es] the whole transaction'" (People v Knight, 16 NY3d 43, 49 [2010] quoting People v Frazier, 16 NY3d 36, 41 [2010]).
A determination of whether or not separate offenses were committed through distinct acts [*3]of a single transaction is within the discretion of trial court (Brown at 364). In conducting such an analysis, "the sentencing court must first examine the statutory definitions of the crimes for which the defendant has been convicted" (Laureano at 643). Subsequently, "based on the statutory definitions, the judge must then focus on the act or omission' — i.e. the actus reus — that makes up each crime" (McKnight at 48). Under Penal Law § 15.00 (1), an act is defined as a "bodily movement". The Court of Appeals has interpreted "bodily movement" to mean "the wrongful deed that comprises the physical components of a crime and that generally must be coupled with the mens rea to establish criminal liability" (McKnight at 48, citing People v Rosas, 8 NY3d 493, 496 n. 2 [2007]).
Regarding the offenses for which defendant was convicted, a person is guilty of murder in the second degree when, "[w]ith intent to cause the death of another person, he causes the death of such person or of a third person" (Penal Law § 125.25 [1]). With respect to criminal impersonation in the first degree, a person is guilty when he "[p]retends to be a police officer" and "[s]o acts with intent to induce another to submit to such pretended official authority or otherwise to act in reliance upon said pretense and in the course of such pretense commits or attempts to commit a felony" (Penal Law § 190.26 [1] [2]). The actus reus of Anderson Rodriguez's murder was the firing of three shots that caused the death of a third person (i.e., Rodriguez); the actus reus of the criminal impersonation, conversely, was posing as a police officer in order fire those shots. Although clearly part of the same transaction, the pull of the trigger (or three pulls to be exact) is a separate and distinct act from pretending to be a police officer (People v Boone, 30 AD3d 535, 536 [2d Dept 2006]).
Defendant's contention that he must be sentenced concurrently because he impersonated a police officer in order to carry out the murder is incorrect. If the continuous act of possessing a weapon is distinct for consecutive sentencing purposes from the discrete act of shooting a victim, then certainly the act of impersonating a police officer is separate and distinct from the act of committing murder (Brown, at 364). Indeed, even crimes closely associated with one another may also be separate acts allowing for consecutive sentences (see People v Salcedo, 92 NY2d 1019 [1998]). "We cannot say as a matter of law that the possession and actual use of the gun were so integrated that they constituted a single act for consecutive sentencing purposes" (Salcedo at 1022).
Here, defendant pretended to be a police officer solely to gain easy entry into Rodriguez's apartment. In fact, his impersonation became a completed crime even before he stepped into Rodriguez's home. Clearly, then, the impersonation and the shooting were separate and distinct acts punishable by consecutive sentences. Defendant's motion to set aside his sentence pursuant to CPL 440.20 is therefore denied in its entirety.
This constitutes the decision and order of the court.
The clerk of the court is directed to forward a copy of this decision to the defendant at his place of incarceration.
Dated: June 28, 2012
E N T E R
________________________________ [*4]
Richard Lee Price, J.S.C.
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