People v Smith

[*1] People v Smith 2017 NY Slip Op 51579(U) Decided on November 2, 2017 Supreme Court, New York County Conviser, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 2, 2017
Supreme Court, New York County

The People of the State of New York, Plaintiff,

against

Andre Smith, Defendant.



3183/2001
Daniel Conviser, J.

The Defendant here moves, pro se, to have the sentences imposed on him following his conviction after a jury trial modified to the extent that his convictions for Robbery in the Second Degree under counts 6 & 7 of the indictment shall be ordered to run concurrently, rather than consecutively to each other and that these two counts should also be ordered to run concurrently, rather than consecutively, to counts 1, 2, 3 of the indictment, under which he was convicted of three counts of Murder in the Second Degree. He asserts that with these changes the aggregate sentence imposed upon him of 120 years to life imprisonment would be modified to result in an aggregate term of 90 years to life imprisonment. For the reasons outlined infra, the Defendant's motion with respect to these claims is granted.

The Defendant's claim, raised for the first time in his reply memorandum, that his weapons possession count sentences must run consecutively to his sentences for felony murder is denied. Finally, the Defendant's conclusory assertion that the sentences imposed upon him are in violation of the Eighth Amendment to the United States Constitution and should be otherwise vacated is likewise denied.

STATEMENT OF FACTS The Court has not reviewed the trial transcript in this case. This Statement of Facts is derived from the parties' papers and the decision on Mr. Salley's pro se habeas corpus motion. Salley v. Graham, 2008 WL 818691 (SDNY).

The Defendant was recruited by co-defendant Sean Salley in May 2001 to rob a known marijuana dealer, Jennifer Stahl, in her Manhattan apartment. On May 10, 2001 the defendants went to Ms. Stahl's apartment after having purchased marijuana from her the prior evening. Four other non-participants in the robbery were present in the apartment and were told along with Ms. Stahl by the Defendant to lie face down while he held a revolver. The Defendant took Ms. Stahl to the part of the apartment where she kept drugs and money while Mr. Salley bound the arms and legs of the other non-participants. Subsequent to surrendering the money and drugs Mr. Salley shot Ms. Stahl in the head, killing her. Each of the other non-participants was then shot in the head by either the Defendant or Mr. Salley. Two non-participants, Anthony Veader and Rosemond Dane, survived; the other two, Stephen King and Charles Helliwell, expired.

The Defendant was convicted as follows: Count 1- Murder in the Second Degree; Count [*2]2- Murder in the Second Degree; Count 3- Murder in the Second Degree; Count 4- Robbery in the First Degree; Count 5- Robbery in the Second Degree; Count 6- Robbery in the Second Degree; Count 7- Robbery in the Second Degree; Count 8- Criminal Possession of a Weapon in the Second Degree; and Count 9- Criminal Possession of a Weapon in the Third Degree. Also convicted, by a separate jury, was co-defendant, Sean Salley.

The Defendant was sentenced to consecutive terms of incarceration of 25 years to life on Counts 1, 2 and 3 (for an aggregate term on these counts of 75 years to life). On Count 4 the Defendant was sentenced to a determinate term of incarceration of 25 years, concurrent to a 15-year determinate term of incarceration under Count 5. The sentences under Counts 1, 2, 3 were ordered to run concurrently to counts 4, and 5. The Defendant was sentenced under each Count 6 and Count 7 to a determinate term of 15 years incarceration. The sentence under Count 6 was ordered to run consecutively to the sentences imposed under Counts 1, 2, 3 and 7, but concurrently with Counts 4 and 5. The sentence under Count 7 was ordered to run consecutively to Counts 1, 2, 3, and 6, but concurrently with Counts 4 and 5. Under Counts 8 and 9 the Defendant was sentenced to respective determinate terms of incarceration of 15 years and 7 years to run concurrently with one another. The sentence under Count 8 was ordered to run consecutively to Counts 1, 2, 3, 4, 5, 6 and 7. The Sentence and Commitment indicates that Count 9 was to run concurrently to Count 8. However, it says nothing about Count 9's relation to the other counts. The Defendant's conviction was upheld on direct appeal. See People v. Salley, 25 AD3d 473 (1st Dept 2006), lv denied, 6 NY3d 838. His motion to vacate judgment has been denied. People v. Smith, 2008 WL 7957774 (New York County). His petition for habeas corpus relief has been dismissed. Smith v. Conway, 2008 WL 2531194 (SDNY).

Count 6 of the indictment charged the Defendant with Robbery in the Second Degree in violation of Penal Law § 165.10 (2) (a) (a robbery in which physical injury is caused to a non-participant in the crime) with respect to the robbery of Ms. Stahl while causing physical injury to Mr. Veader, who was shot. Count 7 of the indictment alleged a violation of the identical provision of law and again concerned the robbery of Ms. Stahl but the shooting (and the causing of physical injury) to Ms. Dane, rather than Mr. Veader. Each of the three murder counts charged the defendant with felony murder. Each alleged the same predicate offense: the robbery of decedent Jennifer Stahl. The three felony murder counts were distinguished by being applicable to three different murder victims: Jennifer Stahl (under count 1); Charles Helliwell (under count 2) and Stephen King (under count 3).

CONCLUSIONS OF LAW

"When 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, except if one or more of such sentences is for a violation of section 270.20 of this chapter, must run concurrently". PL § 70.25 (2).

Counts 6 & 7 of the Indictment Must Run Concurrently to Each Other

A plain reading of the statute would indicate that the Defendant's motion here must be denied with respect to the claim that counts 6 & 7 must run concurrently to each other. It is indisputable that the two robbery counts at issue here were not perpetrated through a single act or omission. That is, the Defendant was convicted of shooting two non-participants in the robbery [*3]through separate shots and separate acts. It is also clear that the second prong of this statutory provision does not appear to require concurrent sentencing under a plain reading of the statutory language. That is, the shooting of one of the two victims (Mr. Veader or Ms. Dane) with respect to this robbery count did not "in itself" constitute one of the offenses and was also a material element of the other.

In People v. Laureano, 87 NY2d 640 (1996) the Court of Appeals provided a further analysis of this statute. The Court noted that the term "act or omission" was defined under the Penal Law as being either a "bodily movement" or "failure to act". 87 NY2d at 643, citing Penal Law § 15.00. It then further asserted that an "act or omission" under the Penal Law is equivalent to the actus reus constituting the crime. The Court further provided that where the actus reus is the same for both offenses or where the actus reus for one offense was a material element of the other, then consecutive sentencing was not permissible unless the People demonstrate that the "acts or omissions" committed by the defendant were separate and distinct acts. Id. see also, People v. Ramirez, 89 NY2d 444 (1996); People v. Arroyo, 93 NY2d 990 (1999); People v. Day, 73 NY2d 208 (1989).

The Robbery Statute at issue here reads as follows:

§ 160.10 Robbery in the second degreeA person is guilty of robbery in the second degree when he forcibly steals property and when:2. In the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:(a) causes physical injury to any person who is not a participant in the crime;

The Fourth Department's decision in People v. Brinson, 216 AD2d 900 (4th Dept 1995), appeal denied, 87 NY2d 844 apparently addressed the identical legal question which is at issue here. In that case, the defendant was convicted of two identical counts of robbery [FN2] for forcibly stealing property from one person while using a dangerous instrument, apparently to cause physical injury to two additional persons. The Court dismissed one of the robbery counts reasoning that "[a]lthough two different individuals were injured, defendant may be convicted of only one count of robbery because there was only one forcible taking of property". Brinson, at 901.

Brinson would require that one of the two counts of the indictment at issue here be dismissed, rather than only result in a concurrent sentence. That is, the Brinson decision would appear to require a greater degree of relief than the Defendant is seeking — a dismissal of either counts 6 or 7. As the People point out, however, the Defendant does not argue for dismissal here and even if that argument was raised, it would have already been waived.

In People v. Borrell, 73 AD3d 1197 (2d Dept 2010), lv denied, 15 NY3d 802, however, the Court held concurrent sentences were required in a case whose facts provided a stronger basis to find that consecutive sentences were warranted than here. Borrell, held as follows:

The defendant was convicted, under count three of the indictment, of robbery in the first degree, based on his forcible stealing of money from a named victim while armed with a deadly weapon. (see Penal Law § 160.15 [2]). The defendant also was convicted, under count six of the indictment, of robbery in the first degree, based on the same forcible stealing of the same money from the same victim while causing serious physical injury to a third person who was not a participant in the crime (see Penal Law § 160.15 [1]). Contrary to the People's contention, the Supreme Court properly determined that the defendant must be sentenced concurrently on these two counts, and properly granted the defendant's motion pursuant to CPL 440.20 to set aside so much of the sentence as directed that the terms of imprisonment imposed on the convictions of these two counts run consecutively to each other (see People v. Ramirez, 89 NY2d 444).

As in Brinson, the critical fact in Borrell was that, although the two robbery counts obviously involved separate "acts" the two counts were "based on the same forcible stealing of the same money from the same victim". The only way these two decisions can be reconciled with Laureano and its progeny is by construing the separate acts in these cases as not being part of the actus reus of the crimes. It is true that the robbery statutes define the basic crime of robbery and then add aggravating factors which increase the degree of robbery from the base third degree crime to second and first degree offenses. The Borrell and Brinson courts may have seen the actus reus of robbery as not encompassing the aggravating factors which raised the degree of robbery in the cases. Seen this way, there was only one actus reus under both counts — the robbery of Jennifer Stahl which would require concurrent sentences on the two counts. The distinct aggravating factors under the two counts, that is, the shooting of the two different victims, would, under that analysis, not be material with respect to the consecutive sentencing issue.

A crime, of course, must include both an actus reus and a mens rea, or culpable mental state. It is notable that under the robbery statutes, the mens rea requirement applies only to the basic crime of robbery. It does not apply to aggravating factors, such as the causing of physical injury to non-participants at issue here. See, e.g., People v. Miller, 87 NY2d 211, 217 (1995) ("Whether the robber commits a first, second or third degree robbery offense, the requisite intent remains the same. Thus, the People bear no greater burden to establish a robber's culpable mental state when that person is charged with first degree robbery as compared to a second or third degree robbery"); People v. Parker, 97 AD2d 943 (4th Dept 1983) ("Mental culpability with respect to any of the aggravating factors that elevate a robbery to one in the first degree need not be established"). The Brinson and Borrell courts may have implicitly applied an equivalent analysis to the actus reus requirement applied by the consecutive sentencing statute, (Penal Law § 70.25 (2)) as interpreted in Laureano.

This Court respectfully believes that these two appellate division cases were wrongly decided. But this Court is bound to follow controlling appellate authority. The People have not cited any case which is on point to the contrary.

Borrell held that concurrent sentences were required in that case even though the Defendant not only committed acts against two different non-participants in the crime (the robbery complainant and a third person), which, by definition, of course, in common parlance were two separate "acts"; but held that concurrent sentences were required even though the two [*4]robbery counts arose under separate subdivisions of the first degree robbery statute. The case against consecutive sentencing is even stronger here. Here, the Defendant was convicted under two counts of the same subdivision for forcibly stealing property from the same complainant.

The principle apparently underlying the Brinson and Borrell decisions is, in this Court's view, wrong because aggravating factors under the robbery statutes are clearly part of the actus reus for robbery crimes. As the Court of Appeals explained the term "actus reus" in its decision in People v. McKnight, 16 NY3d 43, 48 (2010):

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 mens rea to establish criminal liability. (quotation and citation omitted).

Obviously, the shooting of two victims (Mr. Veader and Ms. Dane) arose from two separate acts and two separate "bodily movements"; those dual shootings were obviously "wrongful deeds" and they comprised the "physical components of a crime". As the Court of Appeals said in its decision in People v. Rosas, 8 NY3d 493, 497 (2007) ("we are bound to consider the entire actus reus of the offense with all its components when determining whether consecutive sentences are appropriate") (emphasis added).

Cases cited by the People in opposition to the Defendant's motion on this point or which have authorized consecutive sentencing under somewhat similar circumstances, in this Court's view, are clearly distinguishable. There are obviously cases which have upheld consecutive sentences where multiple shots were fired against multiple victims. For example, in People v. McKnight, supra, the defendant murdered one victim and attempted to kill a separate victim. The court reasoned that the firing of 2 shots from a gun that caused the death of one of the victims was a distinct actus reus from the other 8 shots that either hit the second victim or nobody. It upheld consecutive sentences for the murder of the decedent and the attempted murder of the other individual who survived the shooting. In People v. Brathwaite, 63 NY2d 839 (1984), consecutive sentences on two convictions of felony murder for the deaths of two separate individuals in connection with an armed robbery were proper because the separate acts of shooting each victim formed the actus rei of the offenses, despite being part of one robbery. The holding in Brathwaite explains why it was proper for the Court in the instant case to impose consecutive sentences on the three felony murder counts, even though each count arose from a single robbery.

In People v. Rubero, 294 AD2d (1st Dept 2002), lv denied, 98 NY2d 713 it was proper to sentence the defendant to consecutive sentences for the robbery and attempted murder of a store owner where the evidence established that the defendant initially took the victim's property and only thereafter formed the new intent to commit the attempted murder of the same person evinced by his conduct in shooting the victim in the face. The common thread in all of these cases is that consecutive sentences have been upheld where separate core crimes (i.e. robbery and attempted murder; weapons possession and attempted murder; weapons possession and manslaughter) were committed. See also, People v. Couser, 28 NY3d 368 (2016) (robbery and attempted robbery). This Court is not aware of any case in which consecutive sentences have been upheld upon conviction of a defendant for two robbery counts, against the same victim, under the identical statutory provision. That is what occurred here.

[*5]Counts 6 & 7 Must Run Concurrently to Counts 1, 2 & 3

The Defendant also moves to vacate the portion of his sentence ordering that the convictions for Robbery in the Second Degree (Counts 6 & 7) run consecutive to the three convictions for Murder in the Second Degree (Counts 1, 2 & 3). Both of the Robbery in the Second Degree convictions arose from the forcible stealing of property from Jennifer Stahl. Each of the Murder in the Second Degree counts (PL § 125.25 [3]) were based on the theory of felony murder specifically enumerating the crime of robbery against Jennifer Stahl as the underlying offense. Although multiple victims either died and were injured by the Defendant and the co-defendant, Ms. Stahl was the only individual robbed and there were no other felonies charged (i.e burglary) that could have been used as substitute predicates for robbery in obtaining the felony murder convictions. The Defendant was not charged with or convicted of intentional murder.

Pursuant to PL § 70.25 (2) concurrent sentences are mandated where one of the offenses committed forms a material element of the other. Under each of the three felony murder convictions in this case the People were required to prove as an essential element the commission or attempted commission of a designated felony. Each of the three felony murder counts relied upon the single robbery of Jennifer Stahl as the underlying designated felony.

Where a robbery forms the predicate for a defendant's conviction of felony murder, the sentences for the robbery and the homicide must run concurrently. People v. Sorbello, 285 AD2d 88 (2d Dept 2001), lv denied, 97 NY2d 658; People v. McCoy, 284 AD2d 554 (2d Dept 2001), lv denied, 97 NY2d 707 (2002); People v. Slater, 268 AD2d 260 (1st Dept 2000), lv denied, 95 NY2d 892. That is perfectly consistent with the statute. Here, the indictment and the trial evidence indicated that the single robbery, that of Ms. Stahl, was the predicate for each of the three felony murder convictions and an essential element with respect to each of those counts. Accordingly, the convictions for Robbery in the Second Degree (Counts 6 & 7) are offenses which pursuant to PL § 70.25 (2) must run concurrently with the three convictions for Murder in the Second Degree (Counts 1, 2 & 3).

The People oppose this application primarily relying on the decisions in People v. Truesdell, 70 NY2d 809 (1987) and People v. Brathwaite, 63 NY2d 839 (1984). That reliance is misplaced in both instances. In Truesdell a robbery was committed during which two victims were separately shot and killed. Consecutive sentencing was upheld for the two felony murder convictions. No issue of consecutive sentences with respect to the robbery convictions and felony murder convictions was raised. Similarly, in Brathwaite, as noted supra, two convictions for felony murder during a single armed robbery were properly run consecutively.

The People's reference to People v. Perez, 221 AD2d 169 (1st Dept 1995), appeal denied, 87 NY2d 976 (1996), upholding consecutive sentences for murder and attempted murder in a case where multiple gun shots were fired, does not provide guidance here. In that case, the separate acts of shooting separate people established separate crimes. The citation by the People to People v. Rivera, 262 AD2d 31 (1st Dept), lv denied, 93 NY2d 1025, upholding consecutive sentences for two assault counts for two victims who were separately injured by separate gun shots, suffers from a similar infirmity.

Defendant's Claim that his Weapons Sentences Must Run

Concurrently to his Sentences for Felony Murder Are Denied

The Defendant finally argues that his sentence for Criminal Possession of a Weapon in the Second degree (CPW2), PL § 265.03 (2), based on his conviction for possessing a loaded firearm with the intent to use it unlawfully against another (Count 8) and his sentence for Criminal Possession of a Weapon in the Third Degree, PL § 265.02 (4), based on his conviction for possession of a firearm outside of his home or place of business (Count 9), must run concurrently with the felony murder convictions because the weapons convictions under these weapons counts "arose out of a continuous criminal transaction, to wit, the robbery and the felony murder"[FN3] . That claim is first denied on procedural grounds because it was initially raised in Defendant's reply memorandum. A claim raised for the first time in a reply memorandum is not properly before a motion court. DiPizio v. DiPizio, 81 AD3d 1369 (4th Dept 2011). That claim is also denied on the merits.

In determining whether consecutive sentences may be imposed for a criminal weapons possession count and a crime committed with a weapon: "Only where the act of possession is accomplished before the commission of the ensuing crime and with a mental state that both satisfies the statutory mens rea element and is discrete from that of the underlying crime may consecutive sentences be imposed." People v. Wright, 19 NY3d 359, 362 (2012). If the People fail to show an unlawful intent separate from that of the intent to shoot the victim concurrent sentences are required for CPW2 and a homicide. People v. Wright, supra; People v. Hamilton, 4 NY3d 654, 658 (2005) (sentences for manslaughter and assault could not run consecutively to CPW2 where there was no evidence "he possessed the pistol with a purpose unrelated to his intent to shoot" the victims).

However, if the theory of prosecution is supported by evidence that a defendant possesses a weapon with the intention of using it for one unlawful purpose and, despite maintaining continuous possession of the weapon, then commits the discrete act of shooting and killing a victim, consecutive sentences are permissible. People v. Salcedo, 92 NY2d 1019 (1998) (defendant initially possessed gun with intention of forcing victim to leave store with him and finally shoots and kills after repeated refusals by the victim) see also, People v. Okafore, 72 NY2d 81 (1988).

The trial evidence in this case indicated that the Defendants went to Ms. Stahl's apartment to rob her. As the Court understands the record, there is no evidence that the Defendants knew the other homicide victims would be present in the apartment when they went there to rob Ms. Stahl. The Defendants then, at the time they went to Ms. Stahl's apartment, had the intent to use a firearm unlawfully to rob Ms. Stahl. They clearly did not have the intent, at the time they initially possessed the firearm with the intent to use it unlawfully to rob Ms. Stahl, to kill victims they did not know would be present at the apartment. Thus, with respect to the two murder victims other than Ms. Stahl, consecutive sentences for CPW2 and the murder counts were clearly appropriate.

The issue with respect to Ms. Stahl is not as clear. That is, it is not clear to this Court whether the Defendants had the intent to kill Ms. Stahl throughout the time they possessed the firearm or whether, at the time they initially possessed the firearm, they had the intent to rob Ms. Stahl and only later, upon going to the apartment, or after the robbery occurred, decided to kill [*6]her as well. It is clear that the robbery occurred prior to the time the victims were shot. The burden on this motion, however, is on the Defendant. In the Court's view, that burden has not been met here with respect to the argument that a consecutive sentence was not permissible with respect to the CPW2 count and the felony murder of Ms. Stahl.[FN4] Moreover, this is not an issue which could be resolved by an evidentiary hearing. It is an argument based on record facts. The record here, in this Court's view, does not support the contention that the Defendant had the intent to kill Ms. Stahl at the time he initially possessed the firearm unlawfully with the intent to rob her.

The Defendant also argues that his conviction for Criminal Possession of a Weapon in the Third Degree (CPW3), charging him with possessing a pistol outside his home or place of business, should be ordered to run concurrently to the other counts. However, the Sentence and Commitment with respect to this count provides only that this count (Count 9) shall run concurrently to the CPW2 count (Count 8). The Sentence and Commitment does not provide that Count 9 should run consecutively to any count. Therefore, there is no relief which could be provided with respect to that issue here. To the extent an issue existed, the analysis with respect to the CPW3 count would be similar to the analysis for the CPW2 count and lead to the same result. See People v. Brown, 21 NY3d 739 (2013). The evidence indicated the Defendant possessed the pistol and had committed the CPW3 crime certainly prior to the time he decided to kill Stephen King and Charles Helliwell. As with the CPW2 count, the Court also finds that the Defendant has not demonstrated he harbored the intent to kill Ms. Stahl prior to the time his commission of the CPW3 crime was complete.

The Court would finally note two points. First, this Court's decision is not based on any view that the initial aggregate sentence of 120 years to life imprisonment imposed on the Defendant in this cased was unduly harsh. In this Court's view, a sentence of 120 years to life imprisonment would have been fully justified for these horrific crimes, were that sentence lawful. Second, in practical terms, the modification of the sentence of 120 years to life imprisonment to a new sentence of 90 years to life imprisonment here will almost certainly not result in any change in the Defendant's actual length of incarceration.

However, in this Court's view, the trial court did err in imposing the consecutive sentences as indicated. For all of those reasons, the sentences imposed on the Defendant are hereby ordered modified. The Sentence and Commitment is hereby amended to provide that count 6 shall run concurrently to counts 1, 2, 3 and 7 and that count 7 shall run concurrently to counts 1, 2, 3 and 6. The Defendant's sentence shall otherwise remain unchanged.

November 2, 2017

______________________

Daniel Conviser, A.J.S.C. Footnotes

Footnote 2:The decision does not specifically articulate the robbery counts at issue. However, it may be reasonably inferred from the elements of the offense referenced therein that defendant Brinson was convicted of two counts of Robbery in the Second Degree pursuant to PL § 160.10 (2) (a) (the same statute at issue here).

Footnote 3:Defendant's Reply Memorandum, p. 4, ¶ 16.

Footnote 4:The determination with respect to whether consecutive sentences were lawful with respect to Ms. Stahl for CPW2 and felony murder would also appear to be academic, since, if such consecutive sentences were proper for the two other felony murders, but not for Ms. Stahl, the Defendant's aggregate sentence length (90 years to life imprisonment) would be the same.