AD4 order dated March 20, 2015, modifying one judgment of conviction and affirming the other. Decision below 126 AD3d 1419, 5 NYS3d 787. Stein, J., granted leave on June 24, 2015.

ISSUES PRESENTED: (1)Where defendant threatened a group of five people and took a purse from one of them, whether the sentences on the conviction for robbery and on the convictions for attempted robbery had to run concurrently. (2) Whether a plea to one count was the product of the ineffective assistance of counsel, who misadvised the defendant about the possible sentence range if he went to trial. (3) The validity of the Alford plea. (Assigned counsel: Timothy P. Donaher, Monroe County Public Defender, 10 N. Fitzhugh St., Rochester, NY 14614.)

Issues before the Court: This case involved two appeals. In the first appeal, the Court decided whether P.L. § 70.25 (2) permits consecutive sentences for robbery and attempted robbery, in a gunpoint robbery involving 5 victims where only one robbery was completed when one victim threw her purse on the floor and the defendant physically moved it toward his co-defendant. 

 

In the second appeal, the Court decided the sufficiency of an Alford plea, and whether it was ineffective assistance of counsel for counsel to advise the defendant that his sentence after conviction for first-degree attempted murder could run consecutive to his other sentences.

 

Held: Defendant lost in both appeals. 

 

CAL Observes: (as to appeal #1) As Judge Fahey’s dissent in the first appeal noted, under the majority’s interpretation of P.L. § 70.25 (2), if a defendant yells at five people to throw down their wallets in the course of a robbery, picking each one up is now a separate crime warranting consecutive sentences. This reasoning, Judge Fahey believes, will lead to “irrational parsing of the actions of defendants,” disproportionately high sentences, and is contrary to the Court’s precedents under People v. Laureano, 87 N.Y.2d 640, 643 (1996) and People v. Ramirez, 89 N.Y.2d 444 (1996). He may be right about that.

 

In this case, the defendant and 3 others were tried for the gunpoint robbery of 5 people. During the robbery, when the victims were told to get on the ground, one woman dropped her purse. The defendant pushed the purse over to his co-defendant to retrieve. The defendant’s gun was also discharged, grazing the head of another victim. After the crime, the handgun was found in nearby bushes.

 

Defendant was found guilty of a completed robbery (involving the purse), 4 attempted robberies (including the gunshot victim) and weapon possession charges, and a mistrial was declared on the first-degree attempted murder conviction (the later subject of the Alford plea). After the trial court imposed all the robbery sentences consecutively, the Appellate Division modified the sentences so that all the attempted robberies ran concurrently as “a single act constituting one offense” under P.L. § 70.25 (2). But the Appellate Division found that the completed robbery sentence could still be imposed consecutively. The Court of Appeals affirmed.

 

The Court of Appeals majority reasoned that under P.L. § 70.25 (2), the statutory definitions of the offenses must be examined to  determine if the “actus reus” element is, by definition, the same for both offenses, or if the actus reus for one offense is, by definition, a material element of the second offense.  If the answer is yes, the sentences must be concurrent. The focus is on the actus reas – the physical acts – rather than the mens rea.

 

According to the Court, although overlapping, a completed robbery is different from an attempted robbery, so consecutive sentences are permitted. Here, a purse was taken from one victim when the defendant kicked it to over his companion. That was a distinct act from the gun waving that was used only as to the attempted robberies, even though it was all a single criminal transaction. The Court analogized this case to People v. Ramirez, 89 N.Y.2d 444 (1996), a robbery where a security guard was shot, and sentences were imposed consecutively.

 

In his dissent, joined by Judge Rivera and Judge Stein “in so much of the opinion as relates to the appeal herein,” Judge Fahey accused the majority of creating a “new rule” that misinterpreted the Court’s precedents. Since the defendant had neither committed a separate act nor a separate threat of force in taking the purse, the sentences should be concurrent.

 

Judge Fahey found that the majority misconstrued Ramirez, where the shooting of the security guard was found to be a separate act from the robbery. The sentences were concurrent for the different items taken (a gun from the guards and money from their truck), which is more analogous to the facts here.  

 

Here, the purse victim did not testify that the defendant got her purse through any additional act. He just kicked it on the ground after she put it there – a mere “asportation of property.” Under the Laureano and Ramirez analysis, the relevant actus reus was the same for the completed and attempted robberies. If the majority was right, in Ramirez there would have been consecutive sentences for the gun and money, gotten from two different spots. Under Ramirez, separate acts against particular victims may warrant consecutive sentences, but not a single act against multiple victims. Mere bodily movements to pick something up is not enough.

 

Fahey would have modified the sentences so that the robbery and attempted robberies ran concurrently.