16 N.Y.3d 54 (2010)
Consecutive sentences are permissible when separate and distinct acts constitute the actus reus for each crime, even if those acts contribute to a single event.
Summary
Calvin Battles was convicted of depraved indifference murder, manslaughter, and three counts of depraved indifference assault after pouring gasoline on several individuals in an apartment, resulting in one death and severe burns to others. The Court of Appeals considered whether consecutive sentences for these offenses were legal under Penal Law § 70.25, which generally requires concurrent sentences for offenses committed through a single act. The Court held that consecutive sentences were permissible for the murder and two assault convictions because the act of dousing each victim with gasoline constituted separate acts of creating a grave risk, but the sentence for the third assault victim must run concurrently as he was not directly doused.
Facts
Calvin Battles arrived at Arthur Elliott’s apartment, a known crack den, and argued with Ronald Davis. Battles left, threatened to return and burn the place, and then returned with a gasoline can. He splashed gasoline throughout the apartment, pushed Ronald Davis to the floor, and doused him with gasoline. He also poured gasoline over Gregory Davis and Arthur Elliott. As Battles attempted to light a lighter, Elliott pushed him out of the apartment, and a fire erupted, resulting in Ronald Davis’s death and severe burns to Gregory Davis, Stephen Wheeler, and Arthur Elliott. Wheeler was sprayed with gasoline while the others were doused.
Procedural History
Following a jury trial, Battles was convicted of depraved indifference murder, second-degree manslaughter, and three counts of depraved indifference assault and was sentenced as a persistent felony offender. The Appellate Division modified the judgment by vacating the manslaughter conviction but otherwise affirmed the judgment, rejecting Battles’s claims that the consecutive sentences were illegal and that his sentencing as a persistent felony offender was unconstitutional. The Court of Appeals granted leave to appeal.
Issue(s)
- Whether the consecutive sentences for depraved indifference murder and depraved indifference assault counts are illegal under Penal Law § 70.25 (2) because the crimes shared a common actus reus (starting the fire).
Holding
- No, consecutive sentences are not illegal for the murder of Ronald Davis and assaults on Gregory Davis and Elliott because separate acts of dousing each victim with gasoline constituted the actus reus for each crime; however, the assault sentence pertaining to Wheeler must run concurrently.
Court’s Reasoning
The Court applied Penal Law § 70.25 (2), which requires concurrent sentences for offenses committed through a single act or omission, or through an act or omission that constituted one offense and was a material element of another. The Court explained that to determine whether consecutive sentences are permitted, the statutory definitions of the crimes must be examined. For depraved indifference murder (Penal Law § 125.25 [2]), the statute requires proof that the defendant recklessly engaged in conduct that created a grave risk of death and caused the death of another. Depraved indifference assault (Penal Law § 120.10 [3]) requires proof of serious physical injury.
The Court reasoned that separate acts constituted the actus reus for each crime against Ronald Davis, Gregory Davis, and Elliott. Specifically, the act of soaking each victim with gasoline, in a room where another person was smoking, was so inherently dangerous as to create a grave risk of death or serious physical injury to each of those victims. The Court emphasized that a determination of the cause of ignition of the fire was unnecessary to the determination of defendant’s guilt with respect to those depraved indifference counts. Because the act pertaining to the victim Wheeler was not a separate and distinct act, his sentence must run concurrently.
Chief Judge Lippman dissented in part, arguing that the persistent felony offender sentencing scheme is unconstitutional under Apprendi v. New Jersey, because it allows a judge to impose an enhanced sentence based on facts not found by the jury. Judge Jones dissented in part, arguing that the single act of causing the fire was the basis for all convictions, thus requiring concurrent sentences.