People v. McKune, 12 N.Y.3d 925 (2009)

Consecutive sentences for multiple counts of possessing a sexual performance by a child are illegal if the prosecution fails to demonstrate that the defendant’s acts of possession were separate and distinct, supported by specific facts regarding the time and date of each instance.

Summary

Defendant McKune pleaded guilty to three counts of possessing a sexual performance by a child. The trial court sentenced him to three consecutive terms of 1 to 3 years. The New York Court of Appeals modified the Appellate Division’s order, directing that the defendant’s sentences run concurrently, finding that the prosecution failed to present sufficient facts to prove that each act of possession occurred at a separate time. Without such evidence, the imposition of consecutive sentences was deemed unlawful. The Court emphasized that the indictment lacked specific dates and times for each alleged act of downloading the images, and the plea allocution did not provide these details, thus depriving the court of the authority to impose consecutive sentences.

Facts

Defendant was indicted on August 10, 2004, on seven counts, including unlawful surveillance, endangering the welfare of a child, and multiple counts of possessing and promoting a sexual performance by a child. These charges stemmed from videotapes and digital photographs found in his possession, depicting his and a neighbor’s children, as well as sexual conduct involving children. A subsequent indictment added seven more counts of possessing a sexual performance by a child. The indictments generally stated that the acts occurred “during the month of July, 2004,” without specific dates or times for each image.

Procedural History

The defendant was charged in two separate indictments. He pleaded guilty to three counts of possessing a sexual performance by a child from the first indictment. The trial court sentenced him to three consecutive terms of 1 to 3 years. The Appellate Division affirmed. The New York Court of Appeals modified the order, directing that the sentences run concurrently, and affirmed as modified.

Issue(s)

Whether the trial court legally imposed consecutive sentences for three counts of possessing a sexual performance by a child when the prosecution did not present facts demonstrating that the defendant took possession of each digital image at a separate and distinct time.

Holding

No, because the People did not include the date and time of each of the allegedly separate acts of downloading the digital images set forth in the indictment, or include such facts in defendant’s plea allocution, the court was without authority to impose consecutive sentences.

Court’s Reasoning

The Court of Appeals relied on established precedent, particularly People v. Ramirez, which states that consecutive sentences are permissible only when “the facts demonstrate that the defendant’s acts underlying the crimes are separate and distinct.” The court also cited People v. Laureano, emphasizing that the prosecution may rely on the allegations of the indictment and facts adduced at the allocution to ascertain the existence of such facts. In this case, the indictment lacked specific dates and times for each alleged act of possession, and the plea allocution did not provide these details. Therefore, the court reasoned that the trial court lacked the necessary factual basis to determine that the defendant’s possession of each image constituted a separate and distinct act. The Court emphasized that without such evidence, the imposition of consecutive sentences was unlawful under Penal Law § 70.25. The decision highlights the prosecution’s burden to establish the separateness of criminal acts when seeking consecutive sentences. The court implicitly underscored the importance of specificity in indictments and plea allocutions, especially when the severity of sentencing hinges on the distinctness of the underlying conduct. There were no dissenting or concurring opinions noted.