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New York Appellate Court Decides if Consecutive Sentencing is Appropriate


On the night of December 24th, 1992, Martin B and Kevin D entered the parking lot of a hotel in Queens to make a payroll delivery. Both B and D were off-duty police officers who were moonlighting for the Mount Vernon Money Center. After parking their vehicle, B walked to the security booth while D stayed behind to unload the money bags. A grey sedan appeared without warning and came to a stop behind B and D’s vehicle. A man got out of the car and with what appeared to be an automatic weapon, forced the two men to lie face down on the ground. Several more armed men then exited the sedan.

At some point, B, who was lying on the pavement, began to move towards the security booth. He was shot multiple times in the back. B attempted to fire back at his assailants but lost his weapon. He was able to make it inside the hotel, where he subsequently collapsed. The gunmen took D’s weapon from his waistband and proceeded to ransack the vehicle. The armed men then got into their car and drove away from the hotel. D then found that the payroll delivery and both his and B’s weapons were missing.

A man identified as Alex R was later charged in the case and a jury found him guilty of nine counts of robbery in the first degree. He was also found guilty of one count each of attempted murder, second-degree weapon possession, fourth-degree weapon possession and possession of stolen property in the fifth degree. At sentencing, the Supreme Court imposed separate sentences for the possession counts and ordered them to run concurrently with one another and consecutively with the sentence imposed for the attempted murder charge.

Of the nine robbery counts, three counts were issued for the payroll theft, three counts were issued for the theft of D’s weapon and three counts were issued for the theft of B’s weapon. The court gave Mr. R concurrent sentences for the robbery counts related to the payroll theft. The court also determined that these sentences should run consecutively to the sentences for the charges involving the theft of the men’s weapons. In effect, the Supreme Court imposed three sets of consecutive sentences for the nine robbery counts.

Mr. R’s attorney appealed the court’s decision on the grounds that all of the sentences should be allowed to run concurrently since the robbery constituted a single act.

The New York State Court of Appeals was charged with determining whether the Supreme Court’s consecutive sentencing scheme for the robbery charges was permissible based on the facts of the case and New York Penal Law. It is established that the court may use its own discretion in imposing sentences for criminal acts. The appellate court acknowledged this latitude on the part of the sentencing court but also pointed out that in 1992, the year in which the crimes occurred, New York Penal Law specified that when multiple sentences are ordered to run concurrently, the time served is considered to be merged into a single punishment measured by the sentence for the highest charge.

The appellate court also noted that at the time, Penal Law required that concurrent sentences be imposed for two or more offenses committed through a single act. Sentences imposed for two or more offenses cannot run consecutively if a single act constitutes two offenses. Following this line of reasoning, the appellate court concluded that under the consecutive sentencing scheme, Mr.R received a term of 37 ½ to 75 years. The court pointed out that if the sentences had all been ordered to run concurrently, Mr. R would have faced a term of only 12 ½ to 25 years.

The appellate court went on to say that the sentencing court should have looked more closely at the statutory definitions of Mr. Ramirez’s crimes in order to determine whether concurrent sentences were required. Consecutive sentences should only be ordered when the elements of multiple crimes do not overlap or if the evidence supports the notion that the underlying act is distinct and separate from the crime. Following this logic, the court was forced to reexamine the statutory elements of the crimes for which Mr. R was found guilty.

Under New York Penal Law, robbery encompasses a “forcible stealing” involving the threat or use of physical harm to another person. This differs from other crimes involving the theft of property or money, such as burglary, which involves the forceful entry into a building with the intent to steal. Had Mr. R simply taken money from the truck without the knowledge of either guard, he may only have been charged with grand larceny.

Certain circumstances can elevate robbery from a third degree crime to a first or second-degree offense. These circumstances include causing serious physical injury to the robbery victim or using a deadly weapon or firearm in the commission of a robbery. In Mr. R’s case, the jury determined that these aggravating circumstances were present and constituted sufficient grounds to result in a conviction for nine counts of first-degree robbery.

The appellate court found that the sentencing court acted within its discretion in imposing concurrent sentences for the three counts stemming from the theft of D’s weapon. The court also found that the crimes relating to the theft of D’s weapon and the theft of the payroll were of a different nature than the attack on B. As such, the appellate court determined that the sentencing court’s decision to impose consecutive sentencing for the three counts relating to Bailey was acceptable and that the other sentences could run concurrently. Accordingly, the court rejected Mr. R’s argument and returned the case to the Supreme Court for further proceedings.

As evidenced by this case, the aid of a qualified criminal defense attorney is crucial if you’ve been charged with robbery or a similar crime, such as theft. Mr. R will need the continued help of his defense attorney to act on his behalf.

If you’re facing robbery charges in the New York area, an experienced team of New York Criminal Defense Attorneys is just a phone call away. The law office of Stephen Bilkis and Associates is dedicated to protecting the rights of individuals facing criminal charges for robbery and other property crimes, including burglary. Call us today at 1-800-NY-NY-LAW to speak with a member of our criminal defense team or stop by one of our New York area offices to get the expert legal representation you need.

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