The People v. Calvin Battles
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 216
The People &c.,
Respondent,
v.
Calvin Battles,
Appellant.
Svetlana M. Kornfeind and Andrew C. Fine, for
appellant.
Solomon Neubort, for respondent.
PIGOTT, J.:
One person was burned to death and three others
severely burned as a result of defendant's pouring gasoline over
several individuals and setting a fire.
The primary issue before
us is whether, under the facts of this case, following
defendant's conviction, the court's sentencing of defendant to
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No. 216
A review of the
evidence presented at trial is necessary.
On July 8, 2004 and into the early next morning,
several people, including Gregory Davis, Ronald Davis, and
Stephen Wheeler, were at Arthur Elliott's apartment, a known
crack cocaine den.
Defendant Calvin Battles arrived, and at some
point got into an argument with Ronald Davis.
Defendant left,
but later returned, threatening to burn the place.
Then using a
gasoline can that had been retrieved from his truck, defendant,
lighter in hand, began splashing gasoline throughout the
apartment.
Defendant pushed Ronald Davis to the floor and doused
him with gasoline.
head.
He then poured gasoline over Gregory Davis's
After exchanging words with Elliott, defendant threw
gasoline on him as well.
As defendant attempted to ignite the lighter, Elliott
pushed defendant, who was in the doorway, out of the apartment.
Defendant and Elliott scuffled and a fire broke out.
The lower
part of Elliott's body burst into flames as he fell back into the
apartment, igniting the entire living room.
As a result, Ronald
Davis was burned to death and Gregory Davis, Stephen Wheeler and
Arthur Elliott sustained severe burns.
After a jury trial, defendant was convicted of depraved
indifference murder (Penal Law § 125.25 [2]), second-degree
manslaughter (Penal Law § 125.15 [1]), and three counts of
depraved indifference assault (Penal Law § 120.10 [3]).
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He was
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sentenced as a persistent felony offender to concurrent sentences
of 25 years to life on the depraved indifference murder and
manslaughter convictions, to be followed by consecutive terms of
25 years to life on the depraved indifference assault convictions
related to Gregory Davis and Wheeler, and a consecutive term of
20 years to life on the depraved indifference assault conviction
related to Elliott, for an aggregate sentence of 95 years to
life.
Defendant appealed, asserting, among other claims, that
the imposition of consecutive sentences was illegal because the
victims were all burned in a fire that had a single source of
ignition, and that his sentencing as a persistent felony offender
was unconstitutional under Apprendi v New Jersey (530 US 466
[2000]).
The Appellate Division modified the judgment by
vacating the conviction of second-degree manslaughter (see Penal
Law § 125.15 [1]) and the sentence imposed thereon, and otherwise
affirmed (65 AD3d 1161 [2d Dept 2009]).
As relevant to this
appeal, the court held that defendant's Apprendi claim was
unpreserved and without merit (id. at 1162).
The court further
rejected, without discussion, defendant's consecutive sentencing
claim as without merit (id.).
A Judge of this Court granted leave to appeal and we
now modify.
Defendant contends that the consecutive sentences for
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No. 216
the depraved indifference murder and depraved indifference
assault counts are illegal under Penal Law § 70.25 (2) because
those crimes shared a common actus reus -- defendant's single act
of starting the fire.
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]).
To determine whether
consecutive sentences are permitted, a court must first look to
the statutory definitions of the crimes at issue (People v
Frazier, __NY3d__ [decided today]).
Here, the inquiry begins with the depraved indifference
murder statute, which requires proof that "under circumstances
evincing a depraved indifference to human life, [the defendant]
recklessly engages in conduct which creates a grave risk of death
to another person, and thereby causes the death of another
person" (Penal Law § 125.25 [2]).
The statutory definition of
depraved indifference assault (Penal Law § 120.10 [3]) differs
from that of depraved indifference murder only in the result
created by defendant's conduct; serious physical injury to
another.
The imposition of consecutive sentences was permissible
in this case with respect to Ronald Davis, Gregory Davis and
Elliott because separate acts constituted the actus reus of each
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No. 216
of the depraved indifference crimes against those victims.
Specifically, the trial judge instructed the jurors that they
could find defendant acted with depraved indifference to human
life irrespective of whether they were to find that defendant was
the one who ignited the fire.
Defendant's acts of soaking each
victim with gasoline in a room where other people were present,
and where one of them (Elliott) was smoking a lit cigarette, was
so inherently dangerous to each victim that defendant was found
guilty of depraved indifference murder and depraved indifference
assault based on those acts alone.
A determination of the cause
of the ignition of the fire was unnecessary to the determination
of defendant's guilt with respect to those depraved indifference
counts, and thus, defendant's argument that the actus reus for
all of those crimes was the ignition of the fire fails.
Because
defendant engaged in conduct which created a grave risk of death
or serious physical injury to each of those victims, by separate
and distinct acts of dousing them with gasoline, imposition of
consecutive sentences was authorized under the Penal Law.
We conclude, however, that the sentence imposed
pertaining to Wheeler must run concurrent to the other sentences.
Wheeler was never doused with gasoline, but rather, was sprayed
as a result of the dousing of the others.
Thus, the risk-
creating conduct for his conviction was the same act as that of
the others and running his sentence concurrently is required.
Defendant's challenge to the constitutionality of his
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sentencing as a persistent felony offender and other claims
raised in his pro se brief are without merit (see People v
Quinones, 12 NY3d 116 [2009]; see also People v Bell, __ NY3d __
[decided today]).
Accordingly, the order of the Appellate Division should
be modified and the case remitted to Supreme Court for further
proceedings in accordance with this opinion and, as so modified,
affirmed.
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People v Calvin Battles
No. 216
LIPPMAN, Chief Judge(dissenting in part):
Although at common law the right to a jury
determination of all facts essential to punishment was jealously
guarded (see e.g. People ex rel. Cosgriff v Craig, 195 NY 190
[1909]), more recent history in this and many other states has
witnessed judicial acquiescence in legislative initiatives that
effectively resituate factfinding power necessary to the
justification of punishment from the jury to judges.
This
transfer has been effected most frequently by statutes permitting
the enhancement of otherwise prescribed sentences based on
judicial findings, often by a mere preponderance, respecting a
defendant's criminal history, the circumstances of the offense
before the court, and what the statutorily relevant findings
collectively portend respecting the risk posed by the defendant's
eventual reintroduction to society.
It was widely believed that
these kinds of findings fell comfortably within the discretionary
power judges have traditionally exercised in sentencing criminal
defendants and that they neither diminished the factfinding
prerogative of the jury nor compromised the Sixth Amendment right
to a jury trial.
This perception we now know was wrong, indeed
dramatically so.
In Apprendi v New Jersey (530 US 466 [2000])
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the Supreme Court held that “it is unconstitutional for a
legislature to remove from the jury the assessment of facts that
increase the prescribed range of penalties to which a criminal
defendant is exposed. It is equally clear that such facts must be
established by proof beyond a reasonable doubt" (id. at 490
[internal quotation marks and citation omitted]).
And,
subsequently, in Ring v Arizona (536 US 584 [2002]), Blakely v
Washington (542 US 296 [2004]) and Cunningham v California (549
US 270 [2007]), the Court made it unambiguously clear that
judicial authority to impose punishment was constitutionally tied
to and limited by the jury verdict and any admissions by
defendant.
In Blakely, the Court, citing Ring, stated
emphatically, "[o]ur precedents make clear . . . that the
'statutory maximum' for Apprendi purposes is the maximum sentence
a judge may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant" (542 US at 303
[emphasis in orignal]), and in Cunningham it reiterated that
"[i]f the jury's verdict alone does not authorize the sentence,
if, instead, the judge must find an additional fact to impose the
longer term, the Sixth Amendment requirement is not satisfied"
(549 US at 290 [emphasis added]).
The rule of Apprendi is not so much a limitation on the
power of judges, but a reassertion of the prerogative
constitutionally reserved to the jury to determine facts
necessary to the imposition of punishment at a prescribed level.
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No. 216
Only a single exception to this rule of constitutional power
allocation has been recognized and that is the "narrow" one
carved out in Almendarez-Torres v United States (523 US 224
[1998]), where judicially effected sentence enhancements based
solely on proof of prior convictions were permitted (see
Apprendi, 530 US at 490).
At issue here is the constitutional validity of
sentence enhancements imposed pursuant to New York's statutes
governing the sentencing of persistent felony offenders (CPL
400.20; Penal Law § 70.10).
Enhanced sentencing under these
provsions is conditioned upon a jury verdict convicting a
defendant of a felony and two judicial findings described in CPL
400.20 (1):
"Such sentence may not be imposed unless,
based upon evidence in the record of a
hearing held pursuant to this section, the
court (a) has found that the defendant is a
persistent felony offender as defined in
subdivision one of section 70.10 of the penal
law, and (b) is of the opinion that the
history and character of the defendant and
the nature and circumstances of his criminal
conduct are such that extended incarceration
and lifetime supervision of the defendant are
warranted to best serve the public interest"
(emphasis added).
Finding "a" must be made on proof beyond a reasonable doubt.
Finding "b," however, may under the statute rest on a mere
preponderance of the evidence (CPL 400.20 [5]).
On its face, this provision raises Apprendi issues,
since it appears to afford a judge power to impose an enhanced
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No. 216
sentence based upon facts not found by the jury or within the
Almendarez-Torres carve-out, and to make the findings upon which
the statutory enhancement is evidently conditioned on less than
proof beyond a reasonable doubt.
The constitutionality of
sentences imposed under this sentencing scheme has, not
surprisingly, been a practically constant subject of litigation
since Apprendi.
In People v Rosen (96 NY2d 329 [2001], cert denied 546
US 899 [2001]), and subsequently in more extended form in People
v Rivera (5 NY3d 61 [2005], cert denied 546 US 984 [2005]) and
People v Quinones (12 NY3d 116 [2009], cert denied
US
, 130
S Ct 104 [2009]), we upheld judicially enhanced, persistent
felony offender sentences upon the following reasoning: a
defendant's status as a persistent felony offender is determined
solely on the basis of his or her prior convictions (see Penal
Law § 70.10 [1] [a]), the fact of which, pursuant to AlmendarezTorres, may be proved in a non-jury proceeding; that status
having been permissibly established by a judge, the defendant,
without more, is "subject to" or "eligible for" enhanced
sentencing, with the final determination as to whether he or she
should be sentenced within the now available enhanced sentencing
range depending upon the discretion of the sentencing judge
exercised in accordance with the criteria set forth in the "b"
part of CPL 400.20 (1) (supra).
We characterized this mandatory
exercise of discretion (see CPL 400.20 [9]) as nothing more
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remarkable than the setting of a sentence within a permissible
range based on traditionally considered sentencing factors.
This rationale has, in turn, been the focus of
extensive federal habeas litigation.
In March of this year a
unanimous panel of the Second Circuit found that its persistence
was unreasonable subsequent to the Supreme Court's decision in
Blakely, and, accordingly, that our decisions in Rivera and
Quinones misapplied clearly established Supreme Court precedent
(Besser v Walsh, 601 F3d 163 [2010]).
shortlived.
Besser, however, was
After en banc reconsideration, it was vacated by the
Second Circuit in a divided ruling (Portalatin v Graham, 624 F3d
69 [2010]).
Portalatin, though, hardly places a federal
imprimatur upon our Apprendi jurisprudence.
It was decided under
the extraordinarily deferential review standard applicable in
federal habeas proceedings pursuant to the Antiterrorism and
Effective Death Penalty Act (AEDPA) of 1996 (Pub L No 104-132,
110 Stat. 1214) and, accordingly, was issued with the remarkable
AEDPA caveat, "'we decide not whether the state court correctly
interpreted the doctrine of federal law on which the claim is
predicated, but rather whether the state court's interpretation
was unreasonable in light of the holdings of the United States
Supreme Court at the time.' Policano v Herbert, 507 F3d 111, 115
(2d Cir 2007)" (Portalatin, 624 F3d at 79).
We agreed to hear the current round of appeals
containing Apprendi issues subsequent to Besser but before
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-6Portalatin.
No. 216
And, while I think it safe to say that we would not
have consented to revisit the Apprendi issues raised by New
York's persistent felony offender sentencing scheme had we
anticipated Besser's vacatur, it seems to me that the question
left undecided by Portalatin, namely, whether our interpretation
of the controlling holdings of the United States Supreme Court
has been correct, merits yet another close look.
I do not
believe that our persistent felony offender sentencing provisions
can ultimately survive constitutional scrutiny and, practically,
see nothing to be gained, and much to be lost, in clinging,
during what will undoubtedly be further protracted litigation, to
a legally flawed sentencing scheme whose entirely proper
objectives are capable of being met without constitutional
offense.
Numerous states with similarly flawed sentencing
provisions have taken the judicial and, presumably, the
legislative measures necessary to bring their sentencing statutes
into agreement with Apprendi (see State v Bell, 931 A2d 198 [Conn
2007]; State v Lewis, 590 A2d 149 [Me 2005]; State v Foster, 845
NE2d 470 [Ohio 2006]; State v Fairbanks, 688 NW2d 333 [Minn Ct
App 2004];
State v Maugaotega, 168 P3d 562 [Haw 2007]; State v
Frawley, 172 P3d 144 [NM 2007]; State v Gomez, 239 SW3d 733 [Tenn
2007]; State v Price, 171 P3d 1223 [Ariz 2007]).
There is no
reason why New York should not do so as well.
As Chief Judge Kaye and Judge Ciparick pointed out in
their dissents in Rivera, Rosen's attempt at harmonizing New
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York's persistent felony offender sentencing scheme with
Apprendi, was, at the time, at least arguably viable.
Walton v
Arizona (497 US 639 [1990]), although cast in doubt by Apprendi,
had not yet been overruled, and Walton seemed to support the
notion, essential to Rosen's rationale, that a defendant's mere
eligibility for an enhanced sentence was sufficient to vest a
judge with authority to impose such a sentence, notwithstanding
the need for a further judicial finding to actually permit the
sentence.
Once Walton was overruled by Ring, however, our
ensuing cases, Rivera and Quinones, were deprived of essential
support, for Ring, applying Apprendi, held that where a jury
verdict was not itself sufficient to support the punishment -where the imposition of punishment could not go forward before
some additional judicial finding was made -- the punishment could
not be constitutionally imposed (536 US at 602).
This basic
point -- that the power of the judge to impose a particular
sentence derives from and can be no greater than that afforded by
the verdict (or the defendant's admissions), was, as noted,
forcefully reiterated in Blakely (542 US at 303) and Cunningham
(549 US at 290) and, indeed, characterized in both decisions as a
"bright line" rule.
Under the New York persistent felony offender
sentencing scheme, it is obvious that, even after a defendant has
been found a persistent felony offender by reason of a guilty
verdict and Almendarez-Torres-sheltered judicial findings as to
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No. 216
prior felony convictions, he or she still may not be given an
enhanced, A-I sentence.
Regardless of whether the defendant is
at that point theoretically eligible for or subject to enhanced
sentencing, the actual power to impose such a sentence cannot be
deemed to have accrued under Apprendi because the enhanced
punishment is not statutorily authorized "solely on the basis of
the facts reflected in the verdict or admitted [or on the basis
of prior convictions];"
it depends as well on the additional,
not yet made discretionary findings as to the defendant's
history, character and the circumstances of the crime[s]
expressly mandated by the statute (see CPL 400.20 [1] and [9]).
The statute is clear that, absent those findings, a defendant
must be sentenced as a second felony offender (see CPL 400.20
[10]).
The task set the sentencing judge by the statute, then,
is not, properly understood, one of exercising discretion to
situate a sentence within an already permissible enhanced range,
it is rather one of determining whether, after prior convictions
have been taken into account, there exists a factual predicate to
access the enhanced range and impose a sentence exceeding that
which could be imposed based on the jury verdict and the
defendant's admissions alone.
This judicial exercise, at once
removing from the jury the power constitutionally reserved to it
to assess facts that increase the prescribed range of penalties
to which a defendant is exposed (Apprendi, 530 US at 490) and
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depriving the defendant of his right to a jury trial at which the
prosecution must prove each and every element essential to
justify the sentence beyond a reasonable doubt, lies squarely
within Apprendi's prohibition.
While this Court has characterized the discretionary
findings described in CPL 400.20 [1] [b] as inessential to
eligibility for enhanced sentencing (Rivera, 5 NY3d at 68), that
is not a constitutionally significant gloss.
It does not and can
not alter the essential constitutional defect in the statute,
namely, that there is no reading of it under which the "b"
section judicial determination --
one clearly necessitating
findings significantly more far-reaching than the recidivism
findings already made pursuant to the statute's "a" section, and
going well beyond the facts conceivably established by a verdict
or admitted by the defendant -- may be deemed dispensable to the
actual imposition of an enhanced sentenced.
Even if it were possible to imagine a case such as was
hypothesized in Rivera
(5 NY2d at 70-71) in which a persistent
felony offender sentence was, in accordance with the statute,
based solely on the verdict and Almendarez-Torres sheltered
findings -- and, given the nature of the judicial "opinion"
required by the statute this appears impossible -- it would
remain that the natural and nearly inevitable effect of this
enactment is that judges, and not juries, are cast in the role of
making factual findings upon which the imposition of a sentence
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No. 216
It does not matter whether these
findings themselves require the sentence or whether, as the
Rivera court seemed to find significant, they merely permit a
sentence the basis for which has otherwise been established; in
either case they are necessary to the enhancement's imposition
and under Apprendi may not be constitutionally taken from the
jury and committed to a judge (Blakely, 542 US at 305 n 8).
Under Apprendi, "the relevant inquiry is not one of form, but of
effect" (530 US at 494), and the effect of New York's persistent
felony offender sentencing statutes, as distinguished from any
abstract scenario of benign application, is that defendants are,
in its ministration, regularly exposed to punishment greater than
that which could be imposed upon the jury verdict, the
defendant's admissions and prior convictions alone.
It is to
this real effect that our jurisprudence should respond.
This case provides a vivid example of impermissible
judicial factfinding in support of sentence enhancement.
The
jury acquitted defendant of two felony murder counts, evidently
upon the finding that the underlying felony, arson, had not been
established.
And, indeed, the central issue at trial had been
whether defendant actually set the fatal blaze or whether it
started as an unintended consequence of a victim's cigarette
coming into contact with a gasoline doused surface.
In the post-
verdict sentencing proceedings, however, the court, in the course
of setting upon the record her findings in support of the
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No. 216
enhanced sentences she was about to impose, stated:
"The circumstances surrounding this case, I
mean, let us think about this: Going in and
pouring gasoline on a person, lighting that
gasoline, killing and maiming these people,
if that is not a heinous crime, I don't know
what is" (emphasis added).
The judicial factfinding in this case did not merely
supplement the verdict, as ordinarily occurs in consequence of
following the statute, it materially differed from, indeed
conflicted with it.
The court's crucial enhancement finding that
defendant lit the gasoline was one that the jury specifically
declined to make when it acquitted defendant on the arson-based
counts.
It is one thing for a court to make enhancement findings
that add to the predicate supplied by the verdict, defendant
admissions and prior convictions -- that is objectionable enough
under Apprendi -- it is quite another when the court's findings
essentially nullify a critical component of the verdict.
Yet,
under this statute that can happen because the judge is directed
to form an "opinion" respecting "the nature and circumstances of
[the defendant's] criminal conduct" and may, unlike the jury, do
so upon a mere preponderance of the evidence.
Here, the transfer
of essential factfinding power from the jury to the judge has
achieved undoubted perfection and is on numerous counts
undoubtedly unconstitutional.
It will suffice for present
purposes to observe that this sort of factfinding is absolutely
antithetical to the Sixth Amendment guarantee of a jury trial and
is, of course, quintessentially violative of Apprendi.
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No. 216
Inasmuch as it appears clear that defendant was
unconstitutionally deprived of a jury determination of facts
essential to justify his enhanced sentences, lack of preservation
should not be deemed an impediment to our consideration of his
Apprendi-based arguments.
There can be no more pronounced a
departure from the mode of proceedings prescribed by law than the
denial of a criminal defendant's right to have each and every
element necessary to imposition of the authorized punishment
proved to a jury beyond a reasonable doubt.
The rules of
preservation are not legitimately interposed to avoid such a
fundamental claim (see People v Patterson, 39 NY2d 288, 295
[1976], affd 432 US 197 [1977]), and our cases, fairly construed,
have not so held.
We have held that the challenged sentencing
scheme does not involve an Apprendi violation, we have not held
that a meritorious Apprendi claim would be unreviewable for lack
of preservation.
The Supreme Court in Cunningham had occasion to
describe the rationale offered by the California Supreme Court in
People v Black (35 Cal 4th 1238 [2005]) in justification of the
factfinding role assigned the judge by the California Legislature
under Determinate Sentencing Law (DSL):
"In that court's view, the DSL survived
examination under our precedent intact. See
35 Cal.4th, at 1254-1261, 29 Cal.Rptr.3d 740,
113 P.3d, at 543-548. The Black court
acknowledged that California's system appears
on surface inspection to be in tension with
the rule of Apprendi. But in 'operation and
effect,' the court said, the DSL 'simply
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No. 216
authorize[s] a sentencing court to engage in
the type of factfinding that traditionally
has been incident to the judge's selection of
an appropriate sentence within a statutorily
prescribed sentencing range.' 35 Cal.4th, at
1254, 29 Cal.Rptr.3d 740, 113 P.3d, at 543.
Therefore, the court concluded, 'the upper
term is the "statutory maximum" and a trial
court's imposition of an upper term sentence
does not violate a defendant's right to a
jury trial under the principles set forth in
Apprendi, Blakely, and Booker.' Ibid. . . .
The Black court's conclusion that the upper
term, and not the middle term, qualifies as
the relevant statutory maximum, rested on
several considerations. First, the court
reasoned that, given the ample discretion
afforded trial judges to identify aggravating
facts warranting an upper term sentence, the
DSL 'does not represent a legislative effort
to shift the proof of particular facts from
elements of a crime (to be proved to a jury)
to sentencing factors (to be decided by a
judge).... Instead, it afforded the
sentencing judge the discretion to decide,
with the guidance of rules and statutes,
whether the facts of the case and the history
of the defendant justify the higher sentence.
Such a system does not diminish the
traditional power of the jury.' Id., at
1256, 29 Cal.Rptr.3d 740, 113 P.3d, at 544
(footnote omitted)" (549 US at 289-290
[emphasis added]).
To this now all too familiar account by a state high court of its
justification for retaining, subsequent to Apprendi, a sentencing
scheme reposing essential fact-finding power in a judge rather
than a jury, the Cunningham court replied,
"We cautioned in Blakely, however, that broad
discretion to decide what facts may support
an enhanced sentence, or to determine whether
an enhanced sentence is warranted in any
particular case, does not shield a sentencing
system from the force of our decisions. If
the jury's verdict alone does not authorize
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No. 216
the sentence, if, instead, the judge must
find an additional fact to impose the longer
term, the Sixth Amendment requirement is not
satisfied. 542 U.S., at 305, and n. 8" (549
US at 290) (emphasis added).
There is for Apprendi purposes no material difference
between the California DSL and our persistent felony offender
sentencing statutes.
Nor is there any significant difference in
the reasoning in our cases and that offered by the California
Supreme Court in Black.
While perhaps through some
jurisprudential fluke our sentencing scheme will ultimately be
spared the fate of the California DSL, I do not think it prudent
to count on it.
Accordingly, while I concur with the majority's
modification, I dissent in part and would further modify the
appealed order.
Defendant is, in my view, entitled to the
vacatur of his sentences on the first degree assault counts and
should be resentenced on those counts as a second felony
offender.
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People v Calvin Battles
No. 216
JONES, J. (dissenting in part):
Because I believe that defendant's sentences as to all
four victims should be modified to run concurrently, I
respectfully dissent.
In holding that consecutive sentences were authorized
with respect to three of the victims "because defendant engaged
in conduct which created a grave risk of death or serious
physical injury to each of those victims[] by separate and
distinct acts of dousing them with gasoline" (majority op at 5),
the majority focused on a small portion of the trial court's jury
instruction applicable only to Count 2 on the verdict sheet
(i.e., the depraved indifference murder count).
According to the
majority, the trial court instructed the jurors that they could
find defendant acted with depraved indifference to human life
even if they did not find that defendant ignited the fire (see
id.).
Based on this instruction, the majority posited that
"[d]efendant's acts of soaking each victim with gasoline in a
room where other people were present, and where one of them . . .
was smoking a lit cigarette, was so inherently dangerous to each
victim that defendant was found guilty of depraved indifference
murder and depraved indifference assault based on those acts
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- 2 alone" (id. [emphasis added]).
I disagree.
No. 216
In my view, the
majority's holding is contrary to our precedent interpreting the
"act or omission" under Penal Law § 70.25 (2) as the actus reus
of the particular criminal offense (see People v Laureano, 87
NY2d 640, 643 [1996]; People v Rosas, 8 NY3d 493, 496, 497
[2007]).1
Specifically, the majority incorrectly upheld the
imposition of consecutive sentences for depraved indifference
murder and depraved indifference assault based on what amounts to
separate acts of depraved indifference reckless endangerment.
Penal Law § 70.25 (2) provides that concurrent
sentences must be imposed when two or more offenses are 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."
In People v Ramirez (89 NY2d 444
[1996]), this Court explained that "[s]ection 70.25 (2) does not
prohibit convictions of multiple offenses containing overlapping
elements.
Rather, the statute prohibits double punishment for an
act or omission which violates more than one section of the law
and is accordingly punishable in different ways" (89 NY2d at 451
n 5).
To determine whether concurrent sentences are required,
this Court instructed that:
"[a] sentencing court must first examine the
1
Actus reus (Latin for "guilty act") is defined as "[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" (Black's Law Dictionary 41 [9th ed 2009]).
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No. 216
statutory definitions of the crimes for which
defendant has been convicted. Because both
prongs of Penal Law § 70.25 (2) refer to the
'act or omission,' that is, the 'actus reus'
that constitutes the offense (see Penal Law §
15.00 [1] [bodily movement]; Penal Law §
15.00 [3] [failure to act]), the court must
determine whether the actus reus element is,
by definition, the same for both offenses
(under the first prong of the statute), or if
the actus reus for one offense is, by
definition, a material element of the second
offense (under the second prong). If it is
neither, then the People have satisfied their
obligation of showing that concurrent
sentences are not required. If the statutory
elements do overlap under either prong of the
statute, 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"
(Laureano, 87 NY2d at 643 [case citations omitted]).
That is,
when a defendant is convicted of multiple offenses, the
sentencing court, in addition to reviewing the Penal Law
provisions under which defendant was convicted, must review the
relevant evidence adduced at trial and the trial court's jury
charge to determine whether any of the crimes for which defendant
was convicted were single act offenses (for concurrent sentencing
purposes).
Analysis must begin with the language of the depraved
indifference murder and assault statutes.
Under Penal Law 125.25
(2), "[a] person is guilty of murder in the second degree when
. . . [u]nder circumstances evincing a depraved indifference to
human life, he recklessly engages in conduct which creates a
grave risk of death to another person, and thereby [--i.e., as a
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result of that conduct--] causes the death of another person."
The statutory definition of depraved indifference (first-degree)
assault differs from depraved indifference murder only in the
result caused by defendant's conduct, i.e., "serious physical
injury to another person" (Penal Law § 120.10 [3]).
Examining
these statutory definitions, the entire actus reus of depraved
indifference murder is that defendant recklessly engaged in
conduct which created a grave risk of death to Ronald Davis, and
as a result of that conduct caused the death of Ronald Davis;
while the entire actus reus of depraved indifference assault is
that defendant recklessly engaged in conduct which created a
grave risk of death to Elliott, Wheeler and Gregory Davis, and as
a result of that conduct caused serious physical injury to those
three individuals.
Although a consecutive sentence may be authorized "if
the Legislature has seen fit to provide that up to a particular
point the acts of the defendant constitute one crime and that the
acts of the defendant, committed thereafter, constitute a second
crime and that each series of acts constitut[e] a separate crime"
(Rosas, 8 NY3d at 498 [citations and internal quotation marks
omitted]), such a sentence is not permissible under these facts.
Here, the same "single act" (i.e., the same actus reus) of
causing the fire is the basis for defendant's convictions of
depraved indifference murder and depraved indifference assault.
In People v Rosas, this Court held that the sentences
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imposed on defendant, who was convicted of two counts of firstdegree murder under Penal Law § 125.27 [1] [a] [viii] for causing
the deaths of two individuals during the same criminal
transaction, must be served concurrently.
While distinguishable,
on its facts, from the case at bar, Rosas provides support for
the proposition that the actus reus for a depraved indifference
offense is the act in a series of risk-creating acts that is both
necessary and sufficient to cause the result for which defendant
will be held criminally liable (see Rosas, 8 NY3d at 499
[Regarding the statutory definition of "act" in Penal Law § 15.00
(1) ("a bodily movement"), the Rosas majority noted that purpose
of the statutory definition "draws a line between a prohibited
'act'--'a bodily movement,' or actus reus--and a '[c]ulpable
mental state' (Penal Law § 15.00 [6])--a state of mind, or mens
rea.
The statute could not have been designed to require courts
to distinguish between one and several bodily movements, because
the distinction will be difficult or impossible in many cases as
the dissent recognizes."]; Rosas, 8 NY3d at 503, n 4 [the dissent
noted, "for sentencing purposes, we need concern ourselves only
with the particular act(s) that fulfill the act element(s) of the
offense of which a defendant is charged.
For example, to
accomplish a second-degree intentional murder, a single act
offense, a defendant necessarily engages in many bodily acts--but
the only one the People must prove to support the conviction is
the act that causes the victim's death."]).
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No. 216
Here, causing the fire was the act defendant needed to
perform in order to cause the criminal results of which he was
convicted--the death of Ronald Davis and the serious burn
injuries to Elliott, Wheeler and Gregory Davis.
Accordingly, the
only act the People had to prove to support the depraved
indifference convictions was the act that caused Ronald Davis'
death and the other victims' serious physical injuries--that is,
defendant's single act of igniting the fire.
The acts that
preceded defendant's ignition of the fire--the pouring,
splashing, or throwing gasoline on the victims and around the
room, while essential components of the risk-creating conduct,
cannot be the basis of the sentencing determination under section
70.25 (2) because these acts were insufficient to complete the
crimes of which he was convicted.
In "actus reus" terms, these
acts amount to conduct which created a grave risk of death;
conduct which the People concede supports a conviction for
depraved indifference reckless endangerment.
Further, while the
death and serious physical injuries sustained by the victims
logically could have occurred in the absence of defendant's
separate acts of pouring, splashing, or throwing gasoline, they
could not have occurred without defendant's single act of causing
the fire.
The fact that defendant was acquitted of two felony
murder counts based on the jury's finding that the underlying
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felony, arson in the second degree,2 was not established by the
People does not require a different conclusion.
For purposes of
determining whether concurrent or consecutive sentences were
warranted for defendant's convictions of the instant depraved
indifference offenses, his single act of causing the fire need
not have been an intentional act.
The jury's finding that
defendant was guilty of the depraved indifference counts was not
dependent on whether defendant intentionally set the fire.
Given
the evidence that the fire ignited directly after defendant, with
lighter in hand, pushed Elliott who fell back into the gasolinesoaked living room, it is reasonable to conclude the jury found
that defendant recklessly caused the fire through an act of
depraved indifference.3
The majority and People contend that consecutive
sentencing was permissible because the jury, as charged, could
2
Penal Law § 150.15 provides:
"A person is guilty of arson in the second
degree when he intentionally damages a
building or motor vehicle by starting a fire,
and when (a) another person who is not a
participant in the crime is present in such
building or motor vehicle at the time, and
(b) the defendant knows that fact or the
circumstances are such as to render the
presence of such a person therein a
reasonable possibility."
3
As we noted in People v Feingold (7 NY3d 288, 294 [2006]),
"depraved indifference to human life[, like intent,] is a
culpable mental state."
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No. 216
have found that defendant's separate acts of dousing the victims
with gasoline constituted the relevant "acts" for the depravedindifference crimes, regardless of whether the jury also found
that defendant, through a single act, caused the fire.
However,
in order to justify consecutive sentencing based on separate and
distinct acts, the People must identify "the facts which support
their view" (see Laureano, 87 NY2d at 644 [citation omitted]).
In establishing this claim, the People "may offer facts from the
trial record" (id. [citation omitted]).
not identified any such supporting facts.
Here, the People have
To the contrary, upon
finding that defendant poured, splashed, or threw gasoline on
Ronald Davis, Elliott, Wheeler and Gregory Davis, the jury also
had to find that defendant's "act" caused Ronald Davis' burnrelated death, and the serious burn injuries sustained by
Elliott, Wheeler and Gregory Davis.
Defendant's act which caused
the fire--the pushing of Elliott to the floor--was the only
causative "act" adduced at trial.
Further, the majority's and People's reliance on the
stated jury instruction is problematic.
First, this jury
instruction should have been objected to by defendant's trial
counsel because it allowed the jury to find defendant guilty of
depraved indifference murder on proof of an act (i.e., the
pouring or splashing of a flammable liquid) that only supports
the crime of depraved indifference reckless endangerment.
Second, this instruction, which only applied to the depraved
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indifference murder count, was not given for (and is therefore
inapplicable to) the depraved indifference assault counts.
In addition, the jury was specifically instructed that
in order to convict defendant of a charged offense, it must find
that the People proved each element of the particular criminal
offense beyond a reasonable doubt.
For example, the jury was
instructed to find defendant not guilty of depraved-indifference
assault if the People failed to prove beyond a reasonable doubt
that the defendant caused serious physical injury to Gregory
Davis, Elliott and Wheeler.
As stated, the only causative "act"
adduced at trial was defendant's single act of causing the fire.
Thus, the trial court's charge, when read as a whole, makes clear
that defendant's single act of causing the fire was not
insignificant for purposes of holding defendant criminally liable
(at least for the depraved indifference assault counts).
Based
on the foregoing, the argument put forth by the majority and
people that each of the depraved-indifference assault counts was
complete as soon as defendant doused the respective victims with
gas necessarily fails.
Under the majority's theory, sentencing judges would be
allowed to select and designate specific preliminary acts as the
operative actus reus in depraved-indifference crimes so as to
thwart the requirement of concurrent sentencing for a "single
act" and permit consecutive sentencing.
Not only would this be
contrary to this Court’s long-settled interpretation of section
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70.25 (2) and violative of the legislative intent of the statute,
it would create uncertainty in the law because application of
section 70.25 (2) would depend on the depravity of defendant in
committing certain preliminary acts.
Accordingly, the People failed to meet their burden of
establishing the legality of the consecutive sentences imposed on
defendant because defendant's "single act" of causing the fire
was the basis for his convictions of depraved indifference murder
and depraved indifference assault.
Penal Law § 70.25 (2)
prohibits consecutive punishment for such a single act.
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Order modified by remitting to Supreme Court, Kings County, for
further proceedings in accordance with the opinion herein and, as
so modified, affirmed. Opinion by Judge Pigott. Judges
Ciparick, Graffeo, Read and Smith concur. Chief Judge Lippman
dissents in part in an opinion. Judge Jones dissents in part in
a separate opinion.
Decided December 14, 2010
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