The People v. Charles Frazier
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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The People &c.,
Appellant-Respondent,
v.
Charles Frazier,
Respondent-Appellant.
Eleanor J. Ostrow, for appellant-respondent.
Jody Ratner, for respondent-appellant.
LIPPMAN, Chief Judge:
The primary issue presented by these cross appeals is
whether defendant is subject to consecutive sentences for the
crimes of burglary in the second degree and grand larceny in the
third degree.
Since we find consecutive sentences are
authorized, we modify and remit to the Appellate Division for
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No. 215
further proceedings.
Defendant broke into two Upper East Side apartments -each located on the fifth floor of a five-story walk-up.
The
crimes occurred within weeks of each other, in June and July
2004, respectively.
In each case, the door had been forced open,
the apartment had been ransacked and several thousand dollars
worth of personal property had been stolen.
Defendant's
fingerprints were found inside both apartments.
After defendant
was arrested, he failed to appear for a mandatory court date.
He
was taken into custody the following month in Pennsylvania and
was returned to New York for trial.
In response to concerns raised by defense counsel about
defendant's lack of communication and his competence to stand
trial, the court ordered an emergency examination pursuant to CPL
730.10.
Two experts examined defendant and issued reports
finding him unfit to proceed based on his inability to assist in
his defense.
The court confirmed the finding of unfitness and
defendant was committed to Mid-Hudson Psychiatric Center for
treatment.
He was returned as competent to stand trial after
approximately two weeks.
Supreme Court conducted a competency hearing.
The
People introduced into evidence reports from four experts,
including one of the doctors who had previously found defendant
unfit, each concluding that defendant was now competent to
proceed to trial.
Two of the psychiatrists testified on behalf
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of the People that defendant understood the nature of the
proceedings and the charges.
The defense called their own expert
psychologist who testified that defendant had a severe mental
disorder and was unfit to stand trial due to his inability to
communicate with counsel.
Supreme Court concluded that, although
defendant suffered from depression, it did not prevent him from
participating in his defense and that defendant was instead
unwilling to communicate with his attorney.
The court determined
that the People had established defendant's competence by a
preponderance of the evidence and found defendant fit to proceed.
After trial, defendant was convicted of three counts of
burglary in the second degree, two counts of grand larceny in the
third degree and one count of bail jumping.
He was sentenced, as
a persistent violent felony offender, to concurrent terms of 16
years to life for the burglary convictions to be served
consecutive to concurrent terms of 2 to 4 years for the grand
larceny convictions and consecutive to a term of 2 to 4 years on
the bail jumping conviction.
The Appellate Division modified, on the law, by
directing that the sentences for the larceny convictions be
served concurrently with the sentences for the burglary
convictions and, as so modified, affirmed.
The Court determined
that, since larceny was the only crime that satisfied the intent
element of burglary, the acts making up each crime could not be
viewed as separate and distinct (58 AD3d 468, 469 [1st Dept
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The Court also found that the People had satisfied their
burden to establish defendant's competence to stand trial by a
preponderance of the evidence.
Finally, the Court rejected
defendant's claim that the sentencing procedure under which he
was adjudicated a persistent violent felony offender was
unconstitutional.
A Judge of this Court granted the People leave
to appeal and defendant leave to cross-appeal, and we now modify.
The Penal Law dictates that concurrent sentences are
required "[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, 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]).
We have held that
a court must first look to the statutory definitions of the
crimes to "determine whether the actus reus element is, by
definition, the same for both offenses . . . or if the actus reus
for one offense is, by definition, a material element of the
second offense" (People v Laureano, 87 NY2d 640, 643 [1996]).
The actus reus of the crime is "'[t]he wrongful deed that
comprises the physical components of a crime and that generally
must be coupled with mens rea to establish criminal liability'"
(People v Rosas, 8 NY3d 493, 496 n 2 [2007] quoting Black's Law
Dictionary 39 [8th ed 2004]).
Consecutive sentences can still be imposed where there
is some overlap in the elements of multiple statutory offenses if
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the People can demonstrate "that the 'acts or omissions'
committed by defendant were separate and distinct acts"
(Laureano, 87 NY2d at 643).
However, when the actus reus is "'a
single, inseparable act'" that violates more than one statute,
single punishment must be imposed (see People v Ramirez, 89 NY2d
444, 453 [1996], quoting People ex rel. Maurer v Jackson, 2 NY2d
259, 264 [1957]).
Defendant was convicted of second-degree burglary,
which is defined as knowingly entering or remaining unlawfully in
a dwelling with the intent to commit a crime therein (see Penal
Law § 140.25 [2]).
He was also convicted of grand larceny in the
third degree for stealing property valued at over three thousand
dollars (see Penal Law § 155.35 [1]).
contain the same actus reus.
These statutes do not
The crime of burglary was completed
when defendant entered each complainant's apartment with the
intent to commit a crime.
The ensuing larceny was a separate
crime, perpetrated through defendant's separate act of stealing
property (see People v Yong Yun Lee, 92 NY2d 987, 989 [1998]).
Defendant emphasizes the finding below that larceny was
the only crime that satisfied burglary's intent requirement and
posits that consecutive sentences would punish him twice for the
same conduct.
However, "[t]he test is not whether the criminal
intent is one and the same and inspiring the whole transaction,
but whether separate acts have been committed with the requisite
criminal intent" (People v Day, 73 NY2d 208, 212 [1989] [internal
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As noted above, the
crimes at issue here are separate offenses that were committed
through separate acts.
Nor is one offense a material element of
the other for sentencing purposes, as larceny is not a necessary
component of burglary (see Day, 73 NY2d at 211).
Concurrent
sentences, therefore, are not required and the Appellate Division
should exercise its discretion as to whether consecutive
sentences are appropriate under the facts of this case.
Defendant, on his cross appeal, argues that the People
failed to demonstrate by a preponderance of the evidence that he
was competent to stand trial.
In order to be found competent, a
defendant must be capable of understanding the nature of the
proceedings at issue and be able to assist in providing a defense
(see CPL 730.10 [1]; People v Mendez, 1 NY3d 15, 19 [2003]).
Where the trial court's determination that defendant is mentally
fit to stand trial has been affirmed by the Appellate Division,
our review is restricted to determining whether defendant was
incompetent as a matter of law (see Mendez, 1 NY3d at 20).
Here, four experts provided reports concluding that
defendant was fit to proceed to trial.
Although the defense
expert found him unfit, even that expert agreed that defendant
understood the nature of the charges against him and the
potential penalties involved.
Supreme Court concluded that
defendant's lack of involvement and failure to communicate with
his attorney was volitional because he preferred commitment to a
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secure psychiatric facility to incarceration.
It appears
somewhat unusual that defendant was returned as competent after
spending only two weeks at Mid-Hudson Psychiatric Center
following the prior finding of incompetence.
However, that may
have been the result of error in the initial determinations
finding him unfit.
This record affords no basis for finding
defendant incompetent as a matter of law.
Defendant's argument that the persistent violent felony
offender sentencing scheme is unconstitutional fails under our
line of precedent following United States v Almendarez-Torres,
523 US 224 (1998) (see People v Bell, __ NY3d __ [decided
today]).
Accordingly, the order of the Appellate Division should
be modified by remitting to that Court for further proceedings in
accordance with this opinion and, as so modified, affirmed.
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Order modified by remitting to the Appellate Division,
Department, for further proceedings in accordance with
opinion herein and, as so modified, affirmed. Opinion
Judge Lippman. Judges Ciparick, Graffeo, Read, Smith,
Jones concur.
Decided December 14, 2010
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First
the
by Chief
Pigott and
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