People v. Salcedo, 92 N.Y.2d 1019 (1998)
Consecutive sentences for conspiracy and attempted murder are permissible when the acts constituting each crime are separate and distinct, even if there is some statutory overlap in the definitions of the crimes.
Summary
The New York Court of Appeals affirmed the imposition of consecutive sentences for conspiracy and attempted murder. The defendant argued that concurrent sentences were required because the offenses arose from a single act. The Court of Appeals disagreed, holding that the conspiracy was complete when the defendant and his co-conspirators met, armed and prepared, to seek out the victim. The subsequent act of shooting at the victim, missing, and attempting to shoot again, constituted the separate crime of attempted murder. Because these were separate and distinct acts, consecutive sentences were appropriate. This case clarifies the application of Penal Law § 70.25(2) regarding concurrent and consecutive sentencing.
Facts
Defendant Jose Salcedo, along with Jose Sorrentini and Chris Claudio, planned to lure Guy Maresca to a deserted area under the guise of a pizza delivery. When Maresca arrived, Claudio attempted to shoot him but missed. Claudio tried again, but the gun jammed, and Maresca escaped. All three men were arrested based on information from Sorrentini, a police informant.
Procedural History
Salcedo was convicted of conspiracy in the second degree, attempted murder in the second degree, and criminal possession of a weapon. He received consecutive sentences for the attempted murder and conspiracy convictions. The Appellate Division affirmed the convictions and sentences. The New York Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.
Issue(s)
Whether the trial court erred in imposing consecutive sentences for conspiracy in the second degree and attempted murder in the second degree, or whether concurrent sentences were required under Penal Law § 70.25(2).
Holding
No, the trial court did not err because the acts constituting the conspiracy and the attempted murder were separate and distinct. Therefore, consecutive sentences were permissible.
Court’s Reasoning
The Court of Appeals reasoned that Penal Law § 70.25(2) requires concurrent sentences only when two or more offenses are committed through a single act or omission, or when one act constitutes one offense and a material element of another. The court distinguished conspiracy from attempted murder. Conspiracy requires proof that the defendant agreed with others to commit a class A felony and that one of the conspirators committed an overt act in furtherance of the criminal scheme. Attempted murder requires proof that the defendant intended to commit murder and engaged in conduct that tended to effect the commission of that crime. The court emphasized, “the function of the overt act in a conspiracy prosecution is ‘simply to manifest “that the conspiracy is at work” * * *.’ The overt act must be an independent act that tends to carry out the conspiracy, but need not necessarily be the object of the crime.” Here, the conspiracy was complete when the men met, armed and prepared. The subsequent shooting constituted a separate act of attempted murder. Because these were distinct acts, consecutive sentences were appropriate. The court explicitly referenced People v. Ribowsky, 77 N.Y.2d 284, 293, to underscore the relatively low bar for what constitutes an overt act in furtherance of a conspiracy. This case demonstrates that even though the ultimate goal of the conspiracy (murder) was the same as the intended crime in the attempted murder charge, the acts were distinct enough to warrant separate punishments.