The People v. Ulysess McKnight
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 217
The People &c.,
Respondent,
v.
Ulysess McKnight,
Appellant.
Allen Fallek, for appellant.
Keith Dolan, for respondent.
READ, J.:
On the evening of Friday, September 16, 2005, at the
end of his workweek, William Smith played cards with Eric
Lamotte, his friend of 15 years, and other friends and neighbors
until the early morning hours of September 17, 2005.
The card
game took place out-of-doors, near the middle of Gates Avenue
between Throop and Tompkins Avenues in Brooklyn, where Smith
resided with his mother in a second-floor apartment.
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Lamotte was
- 2 staying with the Smiths at the time.
No. 217
At about 4:30 A.M., a half-
hour or so after Smith and Lamotte broke away from the card game,
they were standing in front of the building where Smith lived
when an acquaintance, Maurice Lingard, joined them.
Seeing two
men round the corner and advance on the three of them with guns
in hand, Lamotte urged Smith, "Let's move, let's go upstairs."
The two gunmen -- Curtis Brown and defendant Ulysses
McKnight -- fired what the police later determined to be a total
of five nine-millimeter and five .45-caliber rounds in the
direction of Lingard, the object of their rage.
Lamotte fled
upstairs to the roof of the building and escaped injury; Lingard,
shot three times, followed close behind Lamotte and survived; but
Smith, struck in the chest and left calf by bullets that lodged
in his body, collapsed in the street and died in the hospital a
few hours later.1
Police officers arrived within minutes and
spotted Brown and McKnight leaving the area.
After a short
pursuit, Brown was caught, while McKnight was not apprehended for
several months.
Neither of the guns used in the shooting was
1
At McKnight's trial, the People's ballistics expert
testified that he could not determine, within a reasonable degree
of scientific certainty, the caliber of either of the bullets
that hit Smith because of their condition. He also testified
that, based on his training and experience, the weight of the
bullet that struck Smith in the chest was consistent with a ninemillimeter round, while the weight and "twists" of the bullet
that struck him in the left calf were consistent with a .45caliber round. The medical examiner who performed Smith's
autopsy testified to a reasonable degree of scientific and
medical certainty that the cause of his death was "gunshot wounds
of the chest and leg with perforation of the lung and trachea."
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No. 217
ever recovered.
McKnight was indicted and tried for various crimes as a
result of this incident.
A jury subsequently found him guilty of
murder and attempted murder in the second degree (Penal Law §§
125.25 [1]; 110.00), based on allegations that, acting in concert
with Brown,2 he intended and engaged in conduct to cause
Lingard's death, and he caused Smith's death.
Supreme Court
sentenced McKnight to 25 years to life for the murder, and 25
years to life for the attempted murder, subsequently reduced to
20 years plus five years of postrelease supervision; and ordered
the sentences to run consecutively for an aggregate prison term
of 45 years to life.
McKnight appealed, protesting that Penal Law § 70.25
(2) mandated concurrent sentences for his convictions for
attempted murder and murder.
The Appellate Division rejected
this claim without discussion (72 AD3d 846, 847 [2d Dept 2010]),
citing People v Bonilla (57 AD3d 400 [1st Dept 2008] [Lippman, P.
J.]) and People v Brathwaite (63 NY2d 839 [1984] [although
defendant's two felony-murder convictions arose from a single
2
Brown was tried jointly with McKnight, but before a
separate jury. He was convicted of murder and attempted murder
in the second degree and criminal possession of a weapon in the
second degree (former Penal Law § 265.03 [2]), and sentenced to
consecutive terms of imprisonment of 25 years to life for murder
and 15 years to life for attempted murder, to run concurrently to
a term of imprisonment of 10 years to life for weapon possession.
The Appellate Division affirmed Brown's judgment of conviction
(People v Brown, 60 AD3d 962 [2d Dept 2009], leave denied 12 NY3d
913 [2009]).
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No. 217
transaction, an armed robbery, the separate acts of shooting each
victim constituted the offenses and neither act was a material
element of the others]).
In Bonilla, the defendant fired at least five shots
during a neighborhood picnic on Labor Day in a New York City
park, killing a 10-year-old girl standing near the intended
victim, who survived.
The defendant was convicted of both murder
and attempted murder in the second degree, and the trial judge
sentenced him to consecutive terms of 25 years to life
imprisonment and 25 years, respectively, for an aggregate prison
term of 50 years to life.
The defendant -- like McKnight --
argued that the shot that caused the death was part of a
multiple-shot actus reus underlying attempted murder and, as a
result, he was not eligible to be sentenced consecutively for
attempted murder and transferred-intent murder.
The Appellate Division disagreed on the ground that the
shot that killed the child and the shots that wounded the
intended victim were "separate and distinct acts" even though
"defendant's intent with respect to each act was to kill the
surviving victim" (id. at 401).
The court added that "[n]othing
in the [trial judge's] instructions on transferred intent
required concurrent sentences" (id. at 401-02).3
3
The Appellate
According to Bonilla's attorneys, the trial judge included
the standard "transferred intent" paragraph in his second-degree
murder charge, instructing that "it is not required that the
person who actually dies be the same person whose death was
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- 5 Division concluded likewise in this case.
No. 217
A Judge of this Court
granted McKnight leave to appeal (15 NY3d 753 [2010]), and we now
affirm.
Section 70.25 of the Penal Law sets out the rules
governing when a judge may or must impose a sentence of
imprisonment concurrently or consecutively to another sentence
imposed at the same time.
As a general rule, a judge is
authorized to direct that multiple sentences "shall run either
concurrently or consecutively with respect to each other" (Penal
Law § 70.25 [1]), except 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, or through an act or
omission which in itself constituted one of the
offenses and also was a material element of the other,
the sentences . . . must run concurrently" (Penal Law §
70.25 [2]).
"Thus, sentences imposed for two or more offenses may not run
consecutively: (1) where a single act constitutes two offenses,
or (2) where a single act constitutes one of the offenses and a
material element of the other" (People v Laureano, 87 NY2d 640,
643 [1996]).
In deciding whether section 70.25 (2) mandates
concurrent sentences, "the sentencing court must first examine
the statutory definitions of the crimes for which defendant has
intended to be caused." In this case, the trial judge tracked
the CJI verbatim, telling the jury that "[u]nder our law it is
not required that the person who dies be the same person whose
death was intended to be caused" (see CJI 2d [NY] Penal Law §
125.25 [1]).
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- 6 been convicted" (id.).
No. 217
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.
The Penal Law defines an "act"
as a "bodily movement" (Penal Law § 15.00 [1]), which we have
interpreted to mean the actus reus or "wrongful deed that
comprises the physical components of a crime and that generally
must be coupled with the mens rea to establish criminal
liability" (People v Rosas, 8 NY3d 493, 496 n 2 [2007] [citation
omitted]; see also Laureano, 87 NY2d at 643).
If the act or omission is the same for both offenses
(under the first prong of section 70.25 [2]), or if the act or
omission that constitutes one offense is a material element of
another offense (under the second prong of section 70.25 [2]),
then consecutive sentences may not be imposed.
Conversely, a
judge possesses discretionary consecutive sentencing authority if
neither circumstance exists.
And even "[i]f the statutory
elements do overlap under either prong of [section 70.25 (2)],
the People may yet establish the legality of consecutive
sentencing by showing that the 'acts and omissions' committed by
defendant were separate and distinct acts" (Laureano, 87 NY2d at
643 [emphasis added]; see also People v Azaz, 10 NY3d 873, 875
[2008] ["'(T)rial courts retain consecutive sentence discretion
when separate offenses are committed through separate acts,
though they are part of a single transaction'" (quoting People v
Brown, 80 NY2d 361, 364 [1992])]; People v Ramirez, 89 NY2d 444,
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No. 217
451 [1996] ["(C)onsecutive sentences may be imposed when either
the elements of the crimes do not overlap(,) or if the facts
demonstrate that the defendant's acts underlying the crimes are
separate and distinct"]).
As relevant here, 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 a third person"
(Penal Law § 125.25 [1]).
A person is guilty of attempted murder
in the second degree when "with intent to commit" that crime "he
engages in conduct which tends to effect the commission of such
crime" (Penal Law §§ 110.00; 125.25 [1]).
The actus reus of the
murder of Smith was the firing of the two shots that "cause[d]
the death of . . . a third person [i.e., Smith]"; and the actus
reus of the attempted murder of Lingard was the firing of the
eight other shots, which either hit no one or hit Lingard and
"tend[ed] to effect" his death.
All ten shots were discharged
with the intent to cause Lingard's death, but "'[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 Frazier, __ NY3d
__ at 5 [decided today] [quoting People v Day, 73 NY2d 208, 212
[1989]).
Thus, the actus reus of Smith's murder is not the same
as the actus reus underlying Lingard's attempted murder under the
first prong; and, under the second prong, the actus reus of
Smith's murder is not a material element of the actus reus of
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No. 217
Lingard's attempted murder because more than the two shots that
struck Smith were fired at Lingard.
If it were otherwise -- if
the two shots that hit Smith were the only shots fired at Lingard
-- we would agree that concurrent sentencing was mandated (see
e.g. People v Battles __ NY3d __ at 5 [decided today]
[consecutive terms of imprisonment were permissible for crimes
committed against three victims who were individually doused with
gasoline by defendant, but sentence imposed with respect to
fourth victim, who was sprayed as a result of dousing of others,
must run concurrently]).
McKnight argues that "the actus reus of each offense
was the same [because] by relying on the transferred intent
theory, the People implicitly concede that all [ten] shots were
fired with the intent to kill Lingard."
Further, "based on the
court's charge, the prosecutor's summation, and the absence of
other evidence of [McKnight's] intent, the jury likely concluded
that the attempt was founded on all the fired shots," citing
People v Parks (95 NY2d 811 [2000]).
Thus, he reasons, "[t]he
shots that killed Smith . . . were part of the actus reus of the
attempt."
But even assuming that McKnight is correct and the
actus rei for the two crimes overlapped, the People clearly
established through the testimony of the ballistics expert and
the medical examiner that two shots struck and killed Smith.
These shots were the result of "separate and distinct acts" of
pulling a trigger to discharge a firearm (see Laureano, 87 NY2d
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- 9 at 643).
No. 217
There is no authority to support the notion that where
an actus reus consists of repetitive discrete acts, such as
successive shots, that these acts somehow merge such that they
lose their individual character where the same criminal intent
(here, the intent to kill Lingard) "inspir[es] the whole
transaction" (see Frazier, supra at 7).
And this is not a case like Parks, which stands for the
proposition that when more than one felony could be the predicate
of a felony murder conviction, the jury's verdict must establish
which felony, in fact, serves as the predicate because otherwise
it would be "impossible to tell which [felony] is a separate and
distinct act from the felony murder" so as to justify consecutive
sentencing (id. at 815).
There is no question here that the jury
convicted McKnight of murder because of the two shots that hit
Smith.
Further, this case is also distinguishable from Rosas,
where the statute itself defined the actus reus for the crime to
encompass the death of two people.
Finally, the dissent likens the circumstances here to
our caselaw on possessory offenses (dissenting op at 4-5).
But
possession with criminal intent is complete once the defendant
has dominion and control of a weapon; there are no more acts he
can take to advance that offense.
Attempt, at least on these
facts, is a continuing series of bodily movements or acts: each
individual shot was sufficient in and of itself to constitute the
attempted murder of Lingard, and defendant could (and did) take
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No. 217
more and more shots to carry out that crime.
Further, the
dissent complains that "[e]ven though several shots were fired,
defendant was charged with one count of attempted murder -- not
separate attempts for each shot.
Rather, all shots were treated
as a single, unified attempt" (dissenting op at 2-3).
section 70.25 deals with sentencing, not charging.
But
The trial
judge's sentencing authority is not constrained by the People's
decision to aggregate bodily movements for purposes of charging.
Essentially, the dissent would have us create a special
rule of sentencing to govern attempt, or at least every case
where an attempted murder carried out by multiple acts results in
the death of someone other than the intended victim.
The First
Department in Bonilla and the Second Department in this case
declined entreaties to place such a gloss on the statute.
We
likewise see no reason to interpret section 70.25 (1) to limit
the trial judge's sentencing discretion in this fashion.
We have considered defendant's remaining contentions
and consider them to be without merit.
Accordingly, the order of
the Appellate Division should be affirmed.
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People v McKnight (Ulysess)
No. 217
LIPPMAN, Chief Judge (dissenting in part):
In this case, the actus reus of the attempted murder
encompasses the entire actus reus of the murder.
Since the two
offenses were committed through the same act within the meaning
of Penal Law § 70.25 (2), concurrent sentences are required.
Therefore, we respectfully dissent from the portion of the order
affirming the imposition of consecutive sentences.
Defendant and co-defendant each fired five shots in an
attempt to murder Maurice Lingard.
William Smith, an innocent
bystander, was killed in the process and his murder was
prosecuted on a theory of transferred intent -- that bullets
intended for Lingard, actually struck and killed Smith.
Under
these circumstances, the two shots that caused Smith's death were
inseparable from the ten shots constituting the attempt on
Lingard's life.
We do not minimize the seriousness of defendant's
conduct, which resulted in the death of Smith.
However, the
doctrine of transferred intent has effectively served to allow
the State to impose a term of 25 years to life on defendant.
We
are here confronted with the different issue of the legality of a
sentence consecutive to the life term.
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No. 217
Under the Penal Law, concurrent sentences are mandatory
when two offenses are committed through a single act, or through
an act which constitutes one offense and is also a material
element of the second (see Penal Law § 70.25 [2]).
The Penal Law
further defines an "act" as "a bodily movement" (Penal Law §
15.00 [1]), which we have interpreted to mean the actus reus of
the offense (see People v Laureano, 87 NY2d 640, 643 [1996]).
As
we have held, a single "act" within the meaning of § 70.25 (2)
can be perpetrated by multiple bodily movements (see People v
Rosas, 8 NY3d 493, 499 [2007]).
Where the statutory elements of the offenses overlap,
consecutive sentences can still be imposed if the "offenses are
committed through separate and distinct acts, though they are
part of a single transaction" (People v Ramirez, 89 NY2d 444, 451
[1996]; see also People v Frazier, __ NY3d __ [decided today]).
In other words, "consecutive sentences may be imposed when either
the elements of the crimes do not overlap or if the facts
demonstrate that the defendant's acts underlying the crimes are
separate and distinct" (Ramirez, 89 NY2d at 451).
The burden of
establishing that consecutive sentences are available is on the
People (see People v Taveras, 12 NY3d 21, 25 [2009]).
There is more than mere overlap between these two
offenses, as depicted by the majority; there is an element of
identity.
Even though several shots were fired, defendant was
charged with one count of attempted murder -- not separate
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- 3 attempts for each individual shot.
No. 217
Rather, all ten shots were
treated as a single, unified attempt.
were correctly so treated.
And it is plain that they
The majority suggests that this was
merely a decision made by the People "for purposes of charging"
(majority opn at 10), but the implication that the People could
have chosen otherwise -- that defendant could have been charged
with and convicted of ten attempts, and given ten consecutive
sentences as a result -- seems self-evidently wrong.
There was
only one attempt, and the actus reus of that attempt consisted of
every shot fired in the effort to take Lingard's life, including
the two shots that struck Smith.
Stated differently, no shot was
fired that was not part of the attempted murder of Lingard.
To reach the conclusion that consecutive sentences are
permissible here, the majority finds that the actus reus of the
murder is separable from the acts, or bodily movements, that
constituted the attempted murder.
To that end, the majority
asserts that the two shots that killed Smith "were the result of
'separate and distinct acts' of pulling a trigger to discharge a
firearm" (majority opn. at 8-9, quoting Laureano, 87 NY2d at
643).
But the majority's separation of the shots -- or the
trigger-pulling acts -- into groups of eight and two is
arbitrary.
The majority analyzes the case as if defendant had
been convicted of the assault, rather than the attempted murder,
of Lingard.
Were that the case, it might be true that the actus
reus of the assault against Lingard could be limited to the
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No. 217
specific shots that hit the victim (see People v Brathwaite, 63
NY2d 839, 843 [1984]).
Since assault is a crime defined by a
result, there would be a basis for treating the acts that
produced that result as a separate actus reus.
But the crime of
attempt is not defined by a result, and in such a case a series
of bodily movements, accompanied by a single continuous intent,
is one actus reus only.
With regard to the actual convictions of
murder and attempted murder, there were not separate actus rei,
even though each offense consisted of several distinct bodily
movements.
Further, there is no indication that the attempt on
Lingard's life came to an end before Smith was shot.
Thus, the
People have not met their burden of establishing that the
convictions were based on separate and distinct acts (see
Ramirez, 89 NY2d at 453).
Our case law on possessory offenses is instructive.
In
People v Salcedo (92 NY2d 1019, 1022 [1998]), we determined that
the crime of criminal possession of a weapon in the second degree
was "complete" once the defendant possessed a loaded gun
intending to use it unlawfully against another.
We observed,
that a "'subsequently formed intent while possessing the weapon
result[s] in the commission of a second offense'" (Salcedo, 92
NY2d 1022, quoting People v Okafore, 72 NY2d 81, 83 [1988]).
Similarly, we explained in Okafore that second-degree weapon
possession "spans only the period during which defendant
possesses the weapon and harbors the unlawful intent to use it
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No. 217
against another" and, "[i]f either element lapses, the crime is
complete" (72 NY2d at 87).
Under the circumstances presented
here, however, the actus reus of the attempted murder was
continuous in nature, such that it can only be concluded that the
offense was complete when the last shot was fired.
Defendant
intended to kill only one individual and the acts he committed in
furtherance of that intent were all committed for the purpose of
attaining that end.
Although two of the bullets struck and
killed Smith, that does not alter the fact that they were fired
as part of an attempt to kill Lingard.
Finally, despite the similarities this case bears to
People v Battles (__ NY3d __ [decided today]), the majority here
reaches a different result.
In Battles, we find a concurrent
sentence appropriate where one of the victims was sprayed with
gasoline while the others were being doused individually.
We
held that "the risk-creating conduct [the actus reus of depraved
indifference assault] . . . was the same act as that of the
others and running his sentence concurrently is required"
(majority opn. at 5).
Here, the shots that hit Smith were part
of the attempted murder of Lingard, and concurrent sentences must
also be imposed.
The disparate result reached by the majority
here can only cause analytic confusion amongst bench and bar.
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People v Ulysess McKnight
No. 217
JONES, J. (dissenting in part):
I agree with Chief Judge Lippman that the two offenses
were committed through the same act and that concurrent sentences
must be imposed.
I do not join Chief Judge Lippman's discussion
of People v Battles (____ NY3d ____ [decided today]).
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Order affirmed. Opinion by Judge Read. Judges Ciparick, Graffeo
and Pigott concur. Chief Judge Lippman dissents in part in an
opinion in which Judge Smith concurs. Judge Jones dissents in
part in a separate opinion.
Decided December 14, 2010
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