People v. Couser, 37 N.Y.3d 370 (2021)

Under New York law, consecutive sentences for robbery and attempted robbery are only permissible if the acts constituting the crimes are separate and distinct; sentencing for felony murder must run concurrently with the underlying felony.

Summary

The New York Court of Appeals addressed two consolidated appeals concerning sentencing for robbery and attempted robbery, and for attempted felony murder. In the first appeal, the court considered whether consecutive sentences were permissible where a defendant committed both a completed robbery and several attempted robberies. The court held that because the taking of the victim’s purse was not a separate and distinct act of force, the sentences for robbery and attempted robbery must run concurrently. In the second appeal, the court addressed whether the sentence for attempted first-degree felony murder could run consecutively to the sentences imposed on the underlying felonies. The court affirmed the lower court’s ruling that a concurrent sentence was required. The court rejected the People’s argument that the attempted felony murder sentence could run consecutively to the sentences imposed on the underlying felony.

Facts

In the first appeal, the defendant was convicted of robbery in the first degree and three counts of attempted robbery in the first degree. During the commission of the crimes, the defendant displayed what appeared to be a firearm and demanded money from the victims. One victim, complying with the defendant’s demands, placed her purse on the ground, which the defendant then directed his accomplice to take. The People sought consecutive sentences for the robbery and the attempted robberies, arguing that the taking of the purse constituted a separate act. In the second appeal, the defendant was also convicted of attempted first-degree felony murder. The People did not specify which underlying felony supported this charge.

Procedural History

The trial court sentenced the defendant to consecutive sentences for the robbery and attempted robberies. The Appellate Division modified the sentence, ruling that concurrent sentences were required. In the second appeal, the Appellate Division affirmed the conviction. Both cases were appealed to the New York Court of Appeals, where they were consolidated.

Issue(s)

1. Whether the defendant’s act of taking a victim’s purse authorized consecutive sentences for robbery and attempted robbery.
2. Whether the sentence for attempted first-degree felony murder should run concurrently with the sentence imposed on the underlying felony.

Holding

1. No, because the taking of the purse was not a separate and distinct act, the sentences must run concurrently.
2. Yes, a sentence for attempted first-degree felony murder must run concurrently with the sentence imposed on the underlying felony.

Court’s Reasoning

Regarding the first issue, the court relied on the New York Penal Law § 70.25 (2) which states that sentences imposed for multiple offenses committed through a single act or omission must run concurrently. The court also discussed the two-part test established in People v. Laureano, 87 N.Y.2d 640 (1996), determining whether consecutive sentences are permissible. The court found that the statutory elements of attempted robbery and robbery overlapped, and there was no separate and distinct act of force to warrant consecutive sentences. The taking of the purse was part of the same act of displaying a firearm to commit the robbery, and thus not a separate act. The court cited the case People v. Ramirez, 89 N.Y.2d 444 (1996) to support its conclusion that the mere taking of property, even through separate movements, did not justify consecutive sentences in this scenario. Regarding the second issue, the court held that, as a matter of law, a sentence imposed for attempted first-degree felony murder must run concurrently with the sentence imposed on the underlying felony. The court cited previous case law and statutory interpretation to support this. As the People could have corrected their failure to specify the underlying felony, the defendant’s plea was deemed rational and valid. The court emphasized that “it is the acts of the defendant, and not the intent with which he or she acted, that control for consecutive sentencing purposes.”

Practical Implications

This case provides guidance for practitioners on when consecutive sentences are permissible in New York. It clarifies the requirements for separate and distinct acts in robbery and attempted robbery cases. Lawyers should be mindful that a single act of force or threat of force that accomplishes the taking of multiple items of property from different individuals, or multiple attempts to rob multiple individuals, does not permit consecutive sentences. This case also affirms the long-standing rule that sentences for felony murder and the underlying felony should run concurrently. It also underscores the importance of properly charging and specifying underlying felonies in indictments, particularly in the context of plea bargains. The failure to specify the underlying felony will result in concurrent sentences for the felony murder and underlying felony charges.