CA: Decisions for May 8, 2007

Sentences for two counts of "multiple" Murder in the First Degree must run concurrent

People v Rosas, 2007 NY Slip Op 03957 [available here]

Back in 1997, Mr. Rosas killed his ex-girlfriend and her husband. He was convicted of two counts of "multiple" Murder in the First Degree, under the theory that he intentionally killed both his ex-girlfriend and her husband, and that in doing so he intended to cause the death of his ex-girlfriend and intended to cause either death or serious physical injury to her husband (and vice versa for the second first-degree murder count). The trial court sentenced Mr. Rosas to consecutive terms of life without parole; the Appellate Division modified the sentences to run concurrent.

The Court of Appeals (in a majority decision written by Judge Ciparick) agreed with the Appellate Division and held that the sentences must run concurrent under Penal Law section 70.25 because the same act--the intentional murder of both victims--underpinned both counts of Murder in the First Degree. (Rosas, 2007 NY Slip Op 03957 at __.) Although each victim was killed by a separate gunshot, the actus reus contemplates the completed crime, and the crime of Murder in the First Degree was not complete until both victims were intentionally killed. "The two separate shots that caused the deaths of the victims here were one actus reus for the purposes of this sentencing statute and consistent with our long-settled interpretation of Penal Law section 70.25(2)." (Id. at __.)

Judge Graffeo dissented, and would have permitted the first-degree Murder sentences to run consecutive. "Each shooting was a separate act and each offense required the People to prove both shootings, i.e. each count required proof of more than one act. There was no single act or omission which in itself constituted one of the offenses. Because defendant's criminal conduct does not fall within either scenario addressed in Penal Law section 70.25(2), consecutive sentencing is not prohibited." (Id. [GRAFFEO, J., dissenting].)


Thanks for coming to Albany!

People v Person, 2007 NY Slip Op 03959 [available here]

The Court declines to decide Mr. Person's case on the merits and instead holds the issue is not preserved for the Court's review. For a Court that controls its own docket, an awful lot of criminal decisions have been tossed on preservation grounds this year. (See People v Miller, 2007 NY Slip Op 03595 [issue not preserved]; People v Gomcin, 2007 NY Slip Op 02590 [record support for lower court's determination]; People v Melendez, 2007 NY Slip Op 02438 [issue not preserved]; People v Dallas, 2007 NY Slip Op 02440 [record support for lower court's determination].)