People v. Rosas

868 N.E.2d 199, 8 N.Y.3d 493, 836 N.Y.S.2d 518

• Court: New York Court of Appeals
• Decided: May 8, 2007
• Status: Published

Opinions

OPINION OF THE COURT

Ciparick, J.

Defendant was convicted of two counts of first degree murder under Penal Law § 125.27 (1) (a) (viii) for causing the deaths of two individuals during the same criminal transaction. The issue presented by this appeal is whether the resulting sentences imposed must run concurrently or consecutively to one another under Penal Law § 70.25 (2). We conclude, under the principles stated in People v Laureano (87 NY2d 640 [1996]), that the sentences must be served concurrently.

In the early morning hours of March 30, 1997, defendant broke into the apartment of his former girlfriend, Yurate Dainiene, and shot her and her husband, Rimgaudas Dainys, to death as they slept in their bed. Defendant proceeded to trial on several charges including, as relevant here, charges of first degree murder.¹ The court instructed the jury in accordance with the Criminal Jury Instructions for Penal Law § 125.27 (1) (a) (viii). Specifically, for the first count the court told the jury that the People were required to prove, in pertinent part:

“1. That. . . the defendant, Abel Rosas, caused the deaths of [both] Yurate Dainiene and Rimgaudas Dainys[;] . . .

“2. That the defendant did so with the intent to cause the death of Yurate Dainiene . . . and the intent to cause either the death or serious physical injury of Rimgaudas Dainys[; and]

“3. That the defendant caused both deaths during the same criminal transaction.”

For the second count, the positions of the victims were reversed, with Rimgaudas Dainys as the primary victim.

During deliberations, the jury sent a note indicating that there was “substantial confusion” regarding the first degree murder counts, asking the court to explain the difference between the two and inquiring whether they were “mutually exclusive.” Supreme Court responded by recharging the elements of murder in the first degree for each count and advising the jury that the two counts were not mutually exclusive.

Defendant was convicted of two counts of first degree murder (Penal Law § 125.27 [1] [a] [viii]), two counts of second degree murder (Penal Law § 125.25 [1]) and one count of criminal possession of a weapon in the second degree (Penal Law § 265.03). Supreme Court sentenced him to two consecutive terms of life imprisonment without parole for the first degree murder convictions, to run concurrently with two consecutive indeterminate terms of 25 years to life for the second degree murder convictions and an indeterminate term of 7V2 to 15 years for criminal possession of a weapon in the second degree.

The Appellate Division modified by vacating the convictions for murder in the second degree and dismissing those counts of the indictment as inclusory concurrent counts of first degree murder. It further found that the imposition of consecutive sentences on the first degree murder convictions violated Penal Law § 70.25 (1) and (2) because there was an identical “act” underlying both counts of murder in the first degree — the double murder of both husband and wife. Moreover, “the murder of the wife was a material element of the offense as to the husband and vice versa” (30 AD3d 545, 546 [2006]). The Court ordered the remaining sentence for weapons possession to run concurrently with the sentences for murder. A Judge of this Court granted the People leave to appeal and we now affirm.

Penal Law § 70.25 addresses the legality of concurrent or consecutive prison sentences. Subdivision (2) provides 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.”

The People have the burden of establishing the legality of consecutive sentences (see Laureano, 87 NY2d at 643).

In this context, the Court has interpreted “act or omission” to include the actus reus of the offense.²

“Because both prongs of Penal Law § 70.25 (2) refer to the ‘act or omission,’ that is, the ‘actus reus' that constitutes the offense, 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)” (Laureano, 87 NY2d at 643 [citations omitted]; see also People v Bryant, 92 NY2d 216, 231 [1998]; People v Ramirez, 89 NY2d 444, 451 [1996]).

A court must look to the statutory definitions of the crimes at issue to decide whether concurrent sentences are warranted (see Laureano, 87 NY2d at 643).

Therefore, in our analysis we must initially look to the language of the first degree murder statute. Penal Law § 125.27, enacted as the State’s capital murder statute, requires a defendant to have committed intentional murder of a person and enumerates 13 aggravating factors that elevate the offense to first degree murder (see People v Miller, 6 NY3d 295, 301 [2006]). Specifically, Penal Law § 125.27 (1) (a) (viii) and (b) states that,

“[a] person is guilty of murder in the first degree when . . .

“[w]ith intent to cause the death of another person, he causes the death of such person or of a third person; and . . .

“as part of the same criminal transaction, the defendant, with intent to cause serious physical injury to or the death of an additional person or persons, causes the death of an additional person or persons; provided, however, the victim is not a participant in the criminal transaction . . .

“[and] [t]he defendant was more than eighteen years old at the time of the commission of the crime.”

The actus reus of the offense is that a defendant intentionally murder one victim and cause the death of the other, with the intent of causing either death or serious physical injury to the second victim. As noted above, under Laureano the actus reus of a particular offense is what constitutes the “act or omission” for the purposes of section 70.25 (2) (see 87 NY2d at 643). Thus, we are bound to consider the entire actus reus of the offense with all its components when determining whether consecutive sentences are appropriate.

A “[c]onsecutive sentence is available ‘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 constituí[e] a separate crime’ ” (People v Day, 73 NY2d 208, 212 [1989], quoting People v Snyder, 241 NY 81, 83-84 [1925]). Here, by contrast, the same acts constitute both crimes. In other words, the same actus reus — the intentional murder of the same two victims — is the basis for both first degree murder convictions.

Defendant intentionally murdered Yurate Dainiene and caused the death of Rimgaudas Dainys — with the intent to cause Dainys’ death or seriously physically injure him — in the same criminal transaction. Likewise, defendant intentionally murdered Rimgaudas Dainys and caused the death of Yurate Dainiene in the same criminal transaction with the requisite intent. Although the order is reversed in each count, as to which victim was primary and which was the aggravator, it is the same two murders that form the basis for each offense.³ Thus, the People have failed to meet their burden of establishing the legality of consecutive sentences, since under the first prong of section 70.25 (2), consecutive sentences cannot be imposed where the actus reus is the same for both offenses. Stated differently, neither offense exists independently of the other as both offenses were committed through a single actus reus.

This case is distinguishable from the situation presented by People v Brathwaite (63 NY2d 839 [1984]), in which the defendant was sentenced to consecutive terms of 25 years to life for two counts of felony murder (murder in the second degree). The owner of a grocery store and an employee were shot and killed during the course of defendant’s robbery of the store. We stated that

“although the two deaths may be said to have occurred in the course of a single extended transaction — the robbery — it was separate ‘acts’ which caused the deaths . . . (i.e., there is no contention that it was the firing of the same shot that killed both the owner and the clerk), and neither was a material element of the other” (Brathwaite, 63 NY2d at 843).

Although the victims in this case were likewise killed by separate shots, section 125.27 (1) (a) (viii) — unlike felony murder— requires multiple victims to constitute a single offense and thus contemplates the possibility of multiple shots. The two separate shots that caused the deaths of the victims here were one actus reus for the purposes of this sentencing statute and consistent with our long-settled interpretation of Penal Law § 70.25 (2) (see Laureano, 87 NY2d at 643; Ramirez, 89 NY2d at 451; Bryant, 92 NY2d at 231).

The People argue and the dissent agrees that our analysis is inconsistent with the statutory definition of “act” in the Penal Law: “a bodily movement” (Penal Law § 15.00 [1]). They note that the crime of first degree murder in this case was accomplished by two bodily movements — two shootings, two offenses — and thus suggest that there could not have been a single “act” within the meaning of Penal Law § 70.25 (2). But the People misconceive the purpose of the statutory definition. It 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.

Finally, the People point out an alleged anomaly in this interpretation of the statute — that defendant could have received consecutive sentences if he had been convicted of two counts of second degree murder for these crimes (Penal Law § 125.25 [1]), but is not eligible for consecutive sentences upon his conviction of two counts of first degree murder.⁴ However, the Legislature has already provided enhanced punishment for crimes deemed serious enough to constitute murder in the first degree. Such crimes potentially warrant an amplified sentence of life imprisonment without parole (see Penal Law §§ 60.06, 70.00), and the People sought and received such a sentence. Given the superfluous nature of consecutive sentences in this instance, it seems unlikely that the Legislature contemplated the effect of the concurrent/consecutive sentencing scheme for this particular offense. We see no reason to interpret the statute as proposed by the People. We do not rewrite the statute but interpret it today consistent with our precedents.

Accordingly, the order of the Appellate Division should be affirmed.

1 . This was defendant’s third trial on these charges. His first trial ended in a mistrial. After a second trial, he was convicted of two counts of first degree murder, two counts of second degree murder and one count of criminal possession of a weapon in the second degree. However, the Appellate Division reversed his conviction and ordered a new trial due to the People’s failure to disclose certain Rosario material (297 AD2d 390 [2d Dept 2002]).

2 . Actus reus 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 39 [8th ed 2004]).

3 . Interestingly, if defendant had murdered at least one additional victim in the same transaction, consecutive sentences might be appropriate. For example, he could have been charged with the intentional murder of A with the accompanying murder of B, the intentional murder of B with the accompanying murder of C and the intentional murder of C with the accompanying murder of A. As so charged, none of the counts would have the same actus reus.

4 . To adopt the approach proposed by the dissent would not prevent anomalous results. Under their theory there could be no consecutive sentencing if defendant killed both people with the same gunshot, and killing dozens or hundreds of victims with a single bomb would count as only “one act” for consecutive sentencing purposes, since in neither case could we say there were two distinct injurious acts.