People v. Salcedo, 92 N.Y.2d 1019 (1998)
Consecutive sentences are permissible for criminal possession of a weapon and murder when the intent to kill is formed after the initial possession of the weapon, constituting separate and distinct acts.
Summary
Salcedo was convicted of second-degree murder and weapon possession after fatally shooting his former girlfriend. The Court of Appeals affirmed the imposition of consecutive sentences for these crimes. The Court held that even though the possession of the weapon was continuous, the initial intent to possess the weapon (to force the victim to talk) was distinct from the later-formed intent to kill her. Thus, the possession and the use of the weapon constituted separate acts justifying consecutive sentences under Penal Law § 70.25 (2).
Facts
The defendant, Salcedo, became enraged after his seven-year relationship with Ysidra Rosario ended. He stopped Rosario as she walked from church and demanded she talk to him. When she refused, Salcedo retrieved a concealed pistol from his vehicle and chased her, hiding the weapon from her view. He caught her inside a grocery store, again demanding she leave with him. Rosario refused and attempted to move away, resulting in Salcedo threatening her with the gun and firing a shot past her. When Rosario broke away and ran, Salcedo followed, brandishing the weapon, and ultimately cornered and fatally shot her at point-blank range.
Procedural History
The defendant was convicted in the trial court of second-degree murder and second and third-degree criminal possession of a weapon. He appealed the imposition of consecutive sentences for the murder and second-degree weapon possession charges. The Appellate Division affirmed the trial court’s decision. The Court of Appeals then reviewed and affirmed the Appellate Division’s order.
Issue(s)
Whether the trial court erred in imposing consecutive sentences for the murder and second-degree weapons possession charges, where the defendant argued his possession of the weapon was coterminous with a continuous and uninterrupted intent to kill the victim, and the two crimes arose from the same “act” within the meaning of Penal Law § 70.25 (2)?
Holding
No, because the defendant’s initial intent in possessing the weapon (to force the victim to leave with him) was distinct from his later-formed intent to kill her. These were separate and distinct acts, permitting consecutive sentences.
Court’s Reasoning
The Court of Appeals relied on Penal Law § 70.25 (2), which mandates concurrent sentences for offenses committed through a single act, but permits consecutive sentences for crimes committed through separate and distinct acts, even within a single transaction. The Court distinguished the case from situations where the possession and use of the weapon are so integrated as to constitute a single act.
The Court highlighted that the People’s theory, supported by evidence, was that Salcedo initially possessed the weapon to force Rosario to leave with him. The crime of possessing the loaded gun with the intent to use it unlawfully against another was complete at that point. It was only after Rosario’s repeated refusals that Salcedo formed the specific intent to kill her. As the court noted, this “subsequently formed intent while possessing the weapon result[ed] in the commission of a second offense.” People v. Okafore, 72 NY2d at 83.
The Court cited People v. Brown, 80 NY2d 361, noting that “[t]he act of the possessory crime, though continuing, is distinct for consecutive sentencing purposes from the discrete act of’ shooting the victim.” The court found the initial possession and subsequent use of the gun against Rosario constituted separate acts, justifying consecutive sentences. The Court stated, “We cannot say as a matter of law that the possession and actual use of the gun were so integrated that they constituted a single act for consecutive sentencing purposes.”