AD4 order dated March 20, 2015, affirming judgment of conviction. Decision below: 126 AD3d 1286, 5 NYS3d 630. Lindley (AD dissenter), J., granted leave June 1, 2015.

ISSUES PRESENTED: (1) Consecutive versus concurrent sentences: Whether it was illegal to run defendant’s intentional murder and first-degree burglary sentences to run consecutively. (2) Whether the defense of extreme emotional disturbance was made out. (3) Whether the admission into evidence of defendant’s statement, for which no Huntley ruling was made or waived, was harmless error. (Assigned counsel: Kathryn Friedman, c/o The Sage Law Firm Group, PLLC, PO Box 200, 465 Grant Street, Buffalo, NY 14213.)

Issue before the Court: Brahney was convicted of intentional second degree murder (Penal Law § 125.25(1), and two counts of burglary in the first degree, based on (1) causing physical injury (Penal Law § 140.30(2)), and (2) using or threatening to use a dangerous instrument (Penal Law § 140.30(3)). While the parties agreed that the burglary sentences needed to run concurrently, they disagreed about whether the burglary sentences could run consecutive to the murder sentence. At issue was whether the People had met their burden of proving identifiable facts establishing that defendant committed the burglary through acts separate and distinct from the murder.

 

Held: The Court unanimously ruled that, because the People “offer[ed] evidence of the existence of separate and distinct acts[s]” distinguishing the burglary from the murder, consecutive sentences could be imposed. 

 

CAL Observes: The Court’s decision is another in the progression of cases extending the circumstances under which a court has the discretion to impose consecutive sentences for crimes with overlapping elements and facts. The precise question here was whether the evidence could be parsed to show that defendant physically stabbed the victim in two places, once upstairs and then again downstairs. Even though the factfinder did not need to make that distinction when it found defendant guilty of the two offenses, the Court concluded that the People had met their burden of proving separate acts: the trial evidence could be read to show that defendant used a dangerous instrument to cause physical injury to the victim upstairs, and dragged her downstairs and murdered her in a separate and distinct act. 

 

Judge Fahey had warned against permitting sentencing judges to parse the evidence to create separate acts last November in his dissent in People v. Couser, 28 N.Y.3d 368, 380-81, cautioning that it could lead to disproportionately high sentences. 

 

This case demonstrates the point: because the People succeeded in fashioning a scenario from the evidence where there was an initial non-lethal stabbing upstairs, followed by the lethal stabbing downstairs, defendant’s sentence was doubled (the 25-year determinate sentence on the burglary permissibly ran consecutive to the 25-year-to-life indeterminate sentence on the murder). Some might suggest that this raises a question about the propriety of the court’s exercise of sentencing discretion, and not the legality of the aggregate sentence. But others, the author included, would contend that permitting sentencing judges to rely on scenarios not passed on by the factfinder to multiply a defendant’s sentence is not an exercise of discretion authorized or intended by the Penal Law.