People v Brahney
NY Slip Op 02465
Decided on March 30, 2017
Issue:
Separate and Distinct Criminal Acts?
Whether consecutive sentences were authorized under Penal Law § 70.25 (2) for defendant Brahney’s burglary and intentional murder convictions where he entered into a former girlfriend’s home through a window, dragged her from her bed to the living room, and stabbed her 38 times.
Holding:
Evidence is Sufficient to Support Consecutive Sentences
The Court of Appeals held that the evidence was sufficient to support separate and distinct criminal acts of burglary and murder, therefore defendant Brahney’s consecutive sentences were authorized.
Facts:
Defendant was charged with two counts of murder in the second degree and two counts of burglary in the first degree after he killed his former girlfriend in her home by stabbing her with a butcher knife. Defendant told his mother that he went to the victim’s apartment, “dragged her down the stairs and murdered her.” Police observed a smashed window and torn screen as well as signs of struggle in the upstairs bathroom and small smears of blood on the wall and floor. The victim was found downstairs on the floor of the living room with a knife sticking out of her chest, surrounded by large pools of blood.
The Chief Medical Examiner testified that he found 38 slash or stab wounds, several of which were fatal. Defendant was found guilty of intentional murder as well as two counts of burglary in the first degree, based on 1) causing physical injury and 2) using or threatening to use a dangerous instrument. At sentencing, the People argued that consecutive sentences were appropriate because defendant pulled the victim out of bed and inflicted minor injuries on her while she was upstairs before dragging her down the stairs and inflicting mortal wounds in the living room. Defendant argued that consecutive sentences were not permissible because the crimes were part of a single, continuous criminal act. Defendant was sentenced to 54 years to life in prison, with concurrent sentences on the two burglary convictions to run consecutively with the sentence for the murder conviction.
Defendant appealed from the judgment of conviction and resentence. The Appellate Division affirmed, stating that “the actus reus elements of the burglary counts and the murder count overlap under the facts presented here,” but the Court “nevertheless concluded that the People established the legality of consecutive sentencing by showing that the ‘acts or omissions’ committed by defendant were separate and distinct acts.” The dissenting justices concluded that the People failed to prove that the crimes were separate and distinct acts.
Analysis:
When are Consecutive Sentences Authorized
Under Penal Law § 70.25 (2), “sentences imposed for two or more offenses may not run consecutively: 1) where a single act constitutes two offenses, or 2) where a single act constitutes one of the offenses and a material element of the other” (People v. Laureano, 87 NY2d 640, 643 [1996]). In determining whether consecutive sentences are authorized, “a court must first look to the statutory definitions of the crimes at issue to discern whether the actus reus elements overlap” (People v. Rodriguez, 25 NY3d 238, 244 [2015]). The “commission of one offense is a material element of a second for restrictive purposes if, by comparative examination, the statutory definition of the second crime provides that the first crime is also a necessary component in the legislative classification and definitional sense.” (People v. Day, 73 NY2d 208, 211 [1989]).
Even if the statutory elements do overlap, the People may establish the legality of consecutive sentencing by showing acts committed by defendant were “separate and distinct.” This rule applies even though the separate and distinct acts “are part of a single transaction” because “the test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent” (McKnight, 16 NY3d 43, 49 [2010]). Conversely, where the actus reus is a single inseparable act that violates more than one statute, a single punishment must be imposed (Rodriguez, 26 NY3d at 244).
Statutory Definitions
As relevant here, a person is guilty of murder in the second degree when “with intent to cause the death of another person, he causes the death of such person or of a third person” (Penal Law § 125.25 [1]). A person commits burglary in the first degree when “he knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein, and when, in effecting entry or while in the dwelling or in immediate flight therefrom, he or another participant in the crime…causes physical injury to any person who is not a participant in the crime…or…uses or threatens the immediate use of a dangerous instrument” (Penal Law § 140.30 [2], [3]).
The actus reus element of the burglary charge predicated upon the use or threatened use of a dangerous instrument does not overlap with that of the murder in the second degree. In contrast, defendant correctly argues that there is an overlap in the actus reus elements of murder in the second degree and the burglary count in which the aggravating factor was causing physical injury. The act of causing death is subsumed within the element of causing physical injury, thus, the act constituting murder here was a material element of that burglary count. With respect to the latter burglary charge, the People concede they were required to identify facts establishing that defendant committed this offense and murder through separate and distinct acts.
Evidence of Separate and Distinct Acts
The evidence of a small amount of blood upstairs compared with the large amount downstairs supports the determination that defendant used a dangerous instrument to cause physical injury to the victim upstairs and then, as he admitted, “dragged her down the stairs and murdered her” in a separate and distinct act. The scenario posited by defendant of one continuous act would have required that the victim barely bled in the location where she sustained a stab wound that sliced or punctured one of her internal organs, but she bled profusely in a different location. The Court of Appeals held, therefore, that the conduct underlying the convictions was not a single act for consecutive sentencing purposes. The orders of the Appellate Division were affirmed.