This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 166 

The People &c.,

 Respondent,

 v.

Phillip Couser, 

 Appellant.

(Appeal No. 1.)

-----------------------

No. 167 

The People &c.,

 Respondent,

 v.

Phillip Couser,

 Appellant.

(Appeal No. 2.)

For Each Case:

James A. Hobbs, for appellant.

Geoffrey Kaeuper, for respondent.

ABDUS-SALAAM, J.:

In the first of these appeals we must consider whether

Penal Law § 70.25 (2) permits consecutive or concurrent

sentencing for defendant's convictions. Specifically, we must

resolve whether defendant's convictions for attempted robbery and

robbery were properly ordered to run consecutively by the trial

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- 2 - Nos. 166 & 167

court. In the second appeal, we must consider whether defense

counsel's advice to defendant, prior to taking an Alford plea to

attempted murder, that his sentence after conviction for that

crime could be directed to run consecutively to his other

sentences rendered counsel's assistance ineffective. 

Additionally, we must determine whether defendant's Alford plea

was knowing, intelligent, and voluntary. We hold that

defendant's consecutive sentences for robbery and attempted

robbery, as modified by the Appellate Division, meet the

requirements of Penal Law § 70.25 (2) as explained by this Court

in People v Laureano (87 NY2d 640, 643 [1996]). We also hold

that defendant received effective assistance of counsel, and

defendant's Alford plea was knowing, intelligent and voluntary. 

I. 

Defendant's convictions stem from his actions in a City

of Rochester park on the evening of August 16, 2008. Defendant,

along with three others, approached a group of five individuals

as they were walking to a vehicle. Defendant pulled out a gun

and told everyone to get on the ground or he would kill them. 

Defendant cocked the gun, placed it at the rear of one of the

victims's head as that victim was lowering himself to the ground,

and fired one shot. The victim of the shooting survived, as the

bullet only grazed the back of his head because he flinched when

defendant fired the gun. The purse of one of the other victims

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- 3 - Nos. 166 & 167

was taken during the incident. When defendant and his companions

left, the police were called and the shooting victim was taken to

the hospital. The police recovered a handgun in nearby bushes

and later verified that it was the gun used in the shooting. 

Following an unrelated search of defendant's home in November

2008 for suspected criminal possession of a weapon, defendant was

interrogated by an officer who suspected defendant might have

been involved in the park robbery a few months prior. Defendant

admitted to possessing a gun in the park on the date of the

robbery and intending to rob the group. He claimed that he did

not intend to kill anyone. Defendant was charged with one count

of first-degree attempted murder (see Penal Law §§ 110.00, 125.27

[1] [a] [vii]), one count of first-degree robbery (see Penal Law

§ 160.15 [4]), two counts of second-degree criminal possession of

a weapon (see Penal Law § 265.03 [1] [b], [3]), three counts of

first-degree attempted robbery (see Penal Law §§ 110.00, 160.15

[4]), and third-degree criminal possession of a weapon (see Penal

Law § 265.02 [1]).

During trial, four of the victims testified for the

People. Three of the four victims testified that they heard

defendant cock the gun before pointing the gun at the shooting

victim. However, defendant, who testified on his own behalf,

stated that he did not point the gun at anyone in particular and

the gun accidentally discharged. The jury was unable to reach a

verdict on the first-degree attempted murder charge, but found

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- 4 - Nos. 166 & 167

defendant guilty of the remaining charges. Defendant consented

to a mistrial as to the attempted murder and accepted a partial

verdict. 

Defendant was sentenced as follows: a determinate term

of 18 years with 5 years of post-release supervision (PRS) for

robbery; determinate terms of 15 years with 5 years of PRS for

each count of criminal possession of a weapon in the second

degree; determinate terms of 15, 10, and 5 years, with 5 years of

PRS each, for the attempted robbery counts; and an indeterminate

term of 2 to 6 years for criminal possession of a weapon in the

third degree. The court directed the sentences for the robbery

and the two counts of criminal possession of a weapon in the

second degree to run concurrently with each other but

consecutively to the remaining sentences. The court further

directed that the sentence for each attempted robbery count was

to run consecutively to all other sentences, and that the

sentence for criminal possession of a weapon in the third degree

was to run concurrently with all other sentences. The aggregate

sentence, therefore, was 48 years with 5 years of PRS.

Prior to retrying defendant on the first-degree

attempted murder count, defense counsel requested an Alford plea

to the minimum sentence available on that charge to run

concurrent to defendant's other sentences. Initially, the court

refused to permit the plea, but thereafter allowed argument on

the issue. Defense counsel stated that defendant "would not be

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- 5 - Nos. 166 & 167

able to give a colloquy indicating an intentional act on his

part," and thus an Alford plea was preferable.1 The People

explained that "[b]ased upon conversations after the trial the

best information that we have is that the vote in the jury was

eleven to one for conviction." Defense counsel stated that

defendant

"is serving a lengthy term as a result of the

charges upon which he has been convicted and

he sees based on our discussions that there

is a strong likelihood that if we had a

retrial that he would be convicted of the

attempted murder charges, and he would not

know what the sentence would be and whether

it would be concurrent or consecutive. The

offer here had been for him to plead to the

charge and receive the minimum sentence to

run concurrent with the sentence he is

serving. And he has indicated to me that he

wishes to make the voluntary choice to accept

this opportunity to plead and receive this

concurrent sentence." 

Following a recitation of the facts underlying the attempted

murder charge by defense counsel and the People, and a recitation

of what the testimony would be upon retrial, the court asked

defendant "[i]s that correct?" After defendant responded "yes,"

the court accepted the Alford plea, stating that the discussion

of the trial evidence and defendant's intention to take the plea

satisfied the requirements to which the court was legally

obligated to adhere. The court asked defendant whether he was

aware of what was taking place and asked him if he wanted to say

1 An Alford plea permits a defendant to plead guilty to a

crime while maintaining innocence (see North Carolina v Alford,

400 US 25 [1970]). 

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- 6 - Nos. 166 & 167

anything. Defendant responded "No," and acknowledged that he was

pleading guilty. The court ordered the promised sentence of 15

years to life to run concurrently with the previously imposed

sentences. Defendant appealed separately from his convictions

following the jury verdict and his conviction following the

Alford plea. 

On the first appeal, the Appellate Division modified

the judgment of conviction by directing the sentences imposed on

the counts of attempted robbery to run concurrently with each

other and consecutively to the sentence imposed on the completed

robbery, and otherwise affirmed (126 AD3d 1419 [4th Dept 2015]). 

The court concluded that the actus reus of all the attempted

robbery counts "was a single act constituting one offense, and

thus the sentences on those counts must run concurrently with

each other" (126 AD3d at 1421).2 The court took no issue with

the sentencing on the remaining counts, noting that the trial

court properly exercised its discretion in directing that the

sentences for robbery and attempted robbery run consecutively. 

In the second appeal, the Appellate Division affirmed, concluding

that "a concurrent sentence was not required for the attempted

murder count . . . because the shooting of the male victim was an

act separate and distinct from the" robbery and attempted robbery

counts (id. at 1422). Accordingly, the court held that defense

2 The People did not appeal the imposition of concurrent

sentences for the three attempted robbery counts. 

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- 7 - Nos. 166 & 167

counsel was not ineffective for advising defendant that a

sentence for attempted murder could run consecutively to his

other sentences, and that defendant's plea in exchange for a

concurrent minimum sentence was knowing, intelligent and

voluntary. We agree. 

II. 

In the first appeal, defendant argues that Penal Law §

70.25 (2) mandates concurrent sentencing under these facts

because the statutory elements of the robbery and attempted

robbery counts are, by definition, identical or overlapping, and

defendant engaged in a single act to attempt and ultimately

execute the robbery -- waving his gun. 

Penal Law § 70.25 (2) provides: "When more than one

sentence of imprisonment is imposed on a person for two or more

offenses committed through a single act or omission, or through

an act or omission which in itself constituted one of the

offenses and also was a material element of the other, the

sentences . . . must run concurrently." We have interpreted that

provision to require that "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 at 643; see People v Battles, 16 NY3d 54, 58

[2010]). 

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- 8 - Nos. 166 & 167

In People v Laureano, we explained that when

"determining whether concurrent sentences are required, the

sentencing court must first examine the statutory definitions of

the crimes for which defendant has been convicted" (87 NY2d at

643). The court must then determine "whether the actus reus

element is, by definition, the same for both offenses (under the

first prong of the statute), or if the actus reus for one offense

is, by definition, a material element of the second offense

(under the second prong)" (id.). The court must focus on actus

reus rather than mens rea "[b]ecause both prongs of Penal Law §

70.25 (2) refer to the 'act or omission' . . . that constitutes

the offense" (id.).3

If a defendant's acts or omissions do not fit under

either prong of the statute, "the People have satisfied their

obligation of showing that concurrent sentences are not required"

(id.). When there "is some overlap of the elements of multiple

statutory offenses," courts retain discretion to impose

consecutive sentences "if the People can demonstrate that the

acts or omissions committed by the defendant were separate and

distinct acts" (People v Frazier, 16 NY3d 36, 40 [2010]), even

"though they are part of a single transaction" (People v Brown,

80 NY2d 361, 364 [1992]). 

3 The actus reus of the crime is "'[t]he wrongful deed that

comprises the physical components of a crime'" (People v Rosas, 8

NY3d 493, 496 n 2 [2007], quoting Black's Law Dictionary 39 [8th

ed 2004]). 

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- 9 - Nos. 166 & 167

Defendant was sentenced to consecutive terms of

imprisonment for his convictions of attempted first-degree

robbery and first-degree robbery. Penal Law § 160.15 (4)

provides that a person commits robbery in the first degree if he

or she "forcibly steals property and . . . in the commission of

the crime or immediate flight therefrom, . . . [d]isplays what

appears to be a pistol, revolver, . . . or other firearm . . ." 

While the elements of attempted first-degree robbery and

first-degree robbery obviously overlap, here, the completed

robbery included a separate and distinct act, giving the trial

court discretion to run the sentences consecutively. The purse

of one of the victims was taken during the incident. The trial

evidence revealed that defendant kicked her purse to his

companion, who took it before defendant fired the gun. That

separate and distinct act involved the taking of one victim's

purse. The taking of this victim's purse constituted a separate

act against a single victim that was distinct from defendant's

use of the gun in an attempt to rob the remaining victims. 

Although the taking of the purse occurred during a single

criminal transaction, the People offered evidence that defendant

waved the gun, which was a separate act from the taking of the

purse, that evidence was sufficient for the trial court to impose

consecutive sentences for the robbery and attempted robberies. 

People v Ramirez (89 NY2d 444 [1996]) is instructive. 

There, a man displaying an automatic weapon ordered two security

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- 10 - Nos. 166 & 167

guards, who were transporting money to a money center, to lie

down on the ground. One of the guards moved and was shot

repeatedly. Other robbers who were similarly armed stole the

guns from both guards and money from inside their vehicle. The

defendant, one of the robbers, was charged with nine counts of

robbery: three relating to the theft from the uninjured guard,

three relating to the theft from the guard who was shot, and

three relating to the theft of money. We determined that the

forcible taking from the uninjured guard was a material element

of the robbery of the money from the vehicle, and therefore all

of the sentences relating to those two thefts had to run

concurrently. We, however, permitted consecutive sentences for

the counts relating to the theft from the guard who was shot. 

Although "the crimes were temporally close in a single criminal

episode," the "entire tenor" of the robberies was "distinct" (id.

at 454-455). So too here, the robbery was a single criminal

episode, but the taking of that victim's purse was a separate and

distinct act from the attempted robberies achieved by waving the

gun. As the dissent concedes, once the People offer evidence of

the existence of a separate and distinct act, the trial court has

discretion to order consecutive sentences. The People did so

here. Under these circumstances we cannot say the trial court

abused its discretion by directing that the sentences for those

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- 11 - Nos. 166 & 167

convictions run consecutively.4

III.

In the second appeal, defendant takes issue with the

Alford plea he entered, contending that the plea must be vacated

because (1) he received ineffective assistance of counsel and (2)

his plea was not knowing, voluntary and intelligent. 

A. Ineffective Assistance of Counsel

Defendant argues that the only reason he took the plea

was because his counsel advised him that he could receive an

additional consecutive sentence if he went to trial. Defendant

4 The dissent's hypothetical robbery involving a

perpetrator waving his gun while demanding that a group of five

victims throw their wallets toward him would not always require

consecutive sentences under this decision. Rather, as the

hypothetical suggests, depending on the manner in which the

taking of the wallets is accomplished, there may or may not be

evidence that separate and distinct acts were committed to

effectuate the robbery so as to permit consecutive sentences. 

Even where the evidence may permit consecutive sentences, the

trial court would still retain discretion to impose concurrent

terms. The conclusion we make today is based on the facts of

this case and the discretion of the trial judge to direct

consecutive sentences based on the defendant's separate and

distinct acts. Moreover, the dissent's prediction that this

decision will result in "sentences grossly disproportionate to

the crimes of which defendants are convicted" (dissenting opn, at

1) ignores Penal Law § 70.30 in which the legislature limited the

number of consecutive sentences that can be imposed on any

defendant by requiring the Department of Corrections and

Community Supervision to cap the aggregate term according to the

statute (see e.g. People ex rel. Ryan v Cheverko, 22 NY3d 132

[2013]).

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- 12 - Nos. 166 & 167

asserts that advice was incorrect, because, in his view, his

conviction for attempted murder must run concurrently with his

conviction for robbery as a matter of law. The first-degree

murder statute provides that a person is guilty of that crime

when "[w]ith intent to cause the death of another person, he

causes the death of such person or of a third person; and . . .

(vii) the victim was killed while the defendant was in the course

of committing or attempting to commit and in furtherance of

robbery" (Penal Law § 125.27 [1] [a] [vii]; see Penal Law §

110.00). Defendant argues that any sentence for attempted first

degree murder that would be imposed upon him would have to run

concurrently with his sentences for robbery and attempted

robbery, because in order to be convicted of first degree murder

under the aforementioned section, he would have had to commit an

underlying enumerated felony, here the robbery. 

We have not directly addressed whether the sentence on

a first-degree felony murder charge must run concurrently with

the sentence imposed on the underlying felony. At the time of

defendant's sentencing, the Fourth Department had yet to address

this issue, but the Second and Third Departments had, holding

that a sentence for first-degree felony murder had to run

concurrently with the sentence imposed on the underlying felony

(see People v Cherry, 46 AD3d 1234, 1238 [3d Dept 2007], lv

denied 10 NY3d 839 [2008]; People v Middleton, 32 AD3d 557, 557-

558 [3d Dept 2006]; People v Alves, 288 AD2d 483, 484 [2d Dept

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- 13 - Nos. 166 & 167

2001]). However, when faced with the issue in this case, the

Fourth Department affirmed the sentencing court's conclusion that

the sentences could run consecutively. Under these

circumstances, we cannot say that defense counsel's advice to

defendant, even if erroneous, rendered him ineffective (see e.g.

People v Modica, 64 NY2d 828, 829 [1985]). 

B. Validity of the Alford Plea

Defendant argues that his plea should be vacated

because it was not knowing, intelligent and voluntary. He

contends that the sentencing court's failure to perform a factual

allocution is inexcusable, where the trial evidence demonstrated

that he lacked the intent required for attempted murder. 

An Alford plea is permitted in New York only when "it

is the product of a voluntary and rational choice, and the record

before the court contains strong evidence of actual guilt"

(Matter of Silmon v Travis, 95 NY2d 470, 475 [2000]). We have

held in this context that if a defendant's factual recitation

"negates an essential element of the crime, raising substantial

doubt as to guilt, the trial court must inquire further to ensure

that defendant's guilty plea is both knowing and voluntary"

(Matter of Silmon, 95 NY2d at 474 n 1 [emphasis added]). 

The extensive factual recitation of the trial evidence

presented by both defense counsel and the People was sufficient

for the court to be satisfied that there was "strong evidence of

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- 14 - Nos. 166 & 167

guilt," such that an Alford plea was appropriate under the

circumstances. Specifically, during the hearing the People

stated on the record that the trial evidence indicated defendant

was present in the park on the date at issue; he was armed with a

loaded handgun and displayed the handgun in the direction of his

victims; and he pointed the gun at the back of one of the

victims's head. Although defendant stated that the gun went off

accidentally, three of the four victims testified that they heard

defendant cock the gun before placing it at the back of the

shooting victim's head. Defendant's counsel agreed with the

People's recitation, and explained that defendant would not admit

guilt to first degree murder. The court noted that it understood

that defendant disputed whether he possessed the requisite

intent, consistent with his testimony at trial. The court then

asked defense counsel to ensure that defendant was in agreement

with taking the Alford plea. After speaking with defendant,

defense counsel stated on the record that defendant was ready to

proceed and that defendant did not dispute that his testimony

would be consistent with his trial testimony should the case be

retried. Defendant expressly acknowledged that counsel's

statement was correct. The court verified that defendant wished

to proceed, and the plea was accepted. Under these

circumstances, the trial record indicated strong evidence of

guilt and the court was not required to do more than it did to

ensure that defendant voluntarily entered the plea (see Matter of

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- 15 - Nos. 166 & 167

Silmon, 95 NY2d 470). 

Defendant further argues that his plea was not knowing,

voluntary, and intelligent because the only reason he pled guilty

to attempted murder was to ensure that he received a concurrent

sentence. The dissent concludes that similar to our felony

murder jurisprudence, a conviction for intentional felony murder

must run concurrently with a conviction for the underlying

felony. However, we have no occasion to address that argument as

defendant first raised it in his reply brief. But, even if we

were to apply our sentencing rules for felony murder, defendant's

argument must fail. Under the facts of this case, concurrent

sentencing was not required.

Here, in his attempt to rob one of the victims,

defendant also shot that victim. Accordingly, the attempt to rob

that victim was sufficient to support defendant's conviction for

first-degree attempted murder (see Penal Law § 125.27 [1] [a]

[vii]). Wholly separate from that act, however, was the taking

of another victim's purse. Although one criminal transaction

occurred, those two separate and distinct acts -- the shooting

and the taking of the purse -- perpetrated against two separate

victims allowed the court to run the sentence for attempted

first-degree murder consecutively to the robbery (see Brown, 80

NY2d 361; People v Lemon, 38 AD3d 1298, 1299 [2007]). 

Defendant points out that the People's failure to

specify in the indictment or at any time prior to the court

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instructing the jury which crime formed the basis for the

first-degree attempted murder charge, requires concurrent

sentencing (see People v Parks, 95 NY2d 811, 815 [2000] ["Under

(such) circumstances, it is impossible to tell which robbery is a

separate and distinct act from the felony murder"]). If we were

to apply our felony murder sentencing rules here, the Parks issue

would not be fatal. At the time the Alford plea was requested by

defendant, the People were facing a retrial, during which the

People could have resolved the Parks issue by identifying the

attempted robbery of the shooting victim as the basis of the

first-degree attempted murder count. Consequently, if defendant

were convicted of attempted murder after retrial, that sentence

could run consecutively to his sentence for robbery. Defendant

therefore received the benefit he apparently sought by taking the

plea -- a concurrent minimum sentence.

V.

Accordingly, on the first appeal the Appellate Division

order, insofar as appealed from, should be affirmed. On the

second appeal, the Appellate Division order should be affirmed. 

- 16 -
People v Phillip Couser

Nos. 166-167 

FAHEY, J. (dissenting in part and concurring in part):

In deciding the first appeal, the majority creates a

new rule that will result in an irrational parsing of the actions

of defendants. The result will be sentences grossly

disproportionate to the crimes of which defendants are convicted. 

Furthermore, the majority has misinterpreted our precedent

regarding the legality of consecutive sentencing. Inasmuch as

defendant neither committed a separate act of force nor made a

separate threat of force against the victim of the completed

robbery to effectuate the taking of her purse, defendant's

sentence for the completed robbery was required to run

concurrently with the sentences imposed on the attempted

robberies. I respectfully dissent in the first appeal. 

 With respect to the second appeal, the sentence imposed

upon defendant's conviction of count one, charging him with

attempted first-degree felony murder, was required to run

concurrently with the sentence imposed on the underlying felony. 

I write separately because the majority fails to definitively

resolve that issue. I nevertheless agree with the majority that

because the People could have corrected their failure to specify

the underlying felony during a retrial on count one, vacatur of

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- 2 - Nos. 166-167

defendant's Alford plea is not required. I therefore concur in

the result on the second appeal. 

Penal Law § 70.25 (2) provides:

"When more than one sentence of imprisonment

is imposed on a person for two or more

offenses committed through a single act or

omission, or through an act or omission which

in itself constituted one of the offenses and

also was a material element of the other, the

sentences . . . must run concurrently." 

Under section 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 Laureano, this Court set forth a two-part test for

determining whether consecutive sentences are legally permissible

under Penal Law § 70.25 (2). In the first step, the sentencing

court must "examine the statutory definitions of the crimes for

which defendant has been convicted" (Laureano, 87 NY2d at 643). 

In doing so, the sentencing court "must determine whether the

actus reus element is, by definition, the same for both offenses

(under the first prong of the statute), or if the actus reus for

one offense is, by definition, a material element of the second

offense (under the second prong)" (id.). If the statutory

elements do not overlap, "then the People have satisfied their

obligation of showing that concurrent sentences are not required"

(id.). If, however, the "statutory elements do overlap under

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- 3 - Nos. 166-167

either prong of the statute," then the sentences must run

concurrently, unless, under the second step of the analysis, the

People "establish the legality of consecutive sentencing by

showing that the 'acts or omissions' committed by defendant were

separate and distinct acts" (id.). 

At all stages of the analysis, the People bear the

burden of establishing the legality of consecutive sentencing

(see id.; see also People v Rodriguez, 25 NY3d 238, 244 [2015]). 

The sentencing court may exercise its discretion to determine

whether to impose a consecutive sentence only if the People have

met their burden to demonstrate that consecutive sentences are

legally authorized under the Penal Law (see Rodriguez, 25 NY3d at

244), which is a question of law. 

I. 

With respect to the first appeal, I disagree with the

majority that it was legally permissible for the sentence imposed

on count two, charging defendant with robbery in the first

degree, to run consecutively to the sentences imposed on counts

five through seven, charging defendant with three counts of

attempted robbery in the first degree. 

Here, the completed robbery and the attempted robberies

were charged pursuant to Penal Law § 160.15 (4), which provides

that a person commits robbery in the first degree when "he

forcibly steals property and when, in the course of the

commission of the crime or of immediate flight therefrom, he or

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- 4 - Nos. 166-167

another participant in the crime . . . [d]isplays what appears to

be a pistol, revolver, rifle, shotgun, machine gun or other

firearm." As the People correctly concede, and the majority

acknowledges (see majority op at 9), under the first prong of the

Laureano analysis, the statutory elements of attempted robbery in

the first degree and robbery in the first degree obviously

overlap. Thus, the People were required to demonstrate the

legality of consecutive sentences "by 'identifying the facts

which support their view' that the crimes were committed by

separate acts" (Rodriguez, 25 NY3d at 244, quoting Laureano, 87

NY2d at 644). 

The majority concludes that the People have met that

burden because defendant committed a separate and distinct act by

taking the robbery victim's purse (see majority op at 9-10). In

the majority's view, People v Ramirez (89 NY2d 444 [1996])

supports that determination. I disagree. Ramirez requires the

conclusion that the mere taking of property completed through the

display of a firearm -- the relevant actus reus -- without a

separate act of force or threat of force used to accomplish the

taking, does not authorize consecutive sentences on the robbery

and attempted robbery charges. 

In Ramirez, armed gunmen surrounded a vehicle being

used to transport payroll bags and ordered the two guards making

the delivery to the ground. One of the guards, Donahue,

complied, but the other guard, Bailey, was shot several times

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- 5 - Nos. 166-167

when he attempted to move. The gunmen removed Donahue's firearm

from his waistband, and Donahue "heard rummaging around in the

vehicle where he had left the payroll bags belonging to the Money

Center" (id. at 448-449). Ultimately, Donahue's gun, Bailey's

gun, and the cash were all stolen (see id. at 449). The

defendant was charged with nine counts of robbery in the first

degree: three counts relating to the theft of Donahue's gun,

three counts relating to the theft of Bailey's gun, and three

counts relating to the theft of the Money Center's property (see

id. at 449 and n 2). 

This Court held that the sentences imposed on the

counts relating to the theft of Bailey's gun could run

consecutively to the sentences imposed on the counts relating to

the thefts from Donahue and the Money Center because "the violent

and repeated shooting of Bailey was a separate and distinct act

which was not a material element of the forcible theft of

Donahue's gun and the payroll bags" (id. at 454). Rather, the

forcible theft of Donahue's gun and the payroll bags was

accomplished through the display of a firearm alone. The Court

further held, however, that the sentences imposed on the counts

relating to the theft of Donahue's weapon and the theft of the

Money Center's payroll bags had to run concurrently. The Court

reasoned that the fact "that defendant was armed and displayed an

obvious and actual firearm before Donahue was a necessary element

of the robbery of the payroll belonging to the Money Center," and

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- 6 - Nos. 166-167

that the crimes were not separate and distinct because "[d]espite

the fact that the stolen property belonged to two different

victims, it is the acts of the defendant that control" (id. at

453 [emphasis added]). In other words, the actus reus of the

counts pertaining to the robberies of Donahue and the Money

Center "was merely a single inseparable act violative of more

than one statute which thereby warrants a single punishment" (id.

[internal quotation marks and emphasis omitted]). 

Importantly, the Court required the sentences to run

concurrently even though the property stolen was located in

different places, and therefore required the defendant and/or his

accomplices to engage in at least two different acts, or "bodily

movement[s]" (see Laureano, 87 NY2d at 644, citing Penal Law §

15.00 [1]), to accomplish the theft of property. Donahue's

weapon was in his waistband when it was taken, and the payroll

bags were in the vehicle (see Ramirez, 89 NY2d at 448-449). 

Thus, although the gunmen engaged in only one threat of force to

accomplish those takings -- the display of weapons and an order

to get on the ground -- the gunmen had to engage in separate

"acts" or "bodily movements" to complete the robberies by taking

Donahue's gun from his waistband and by removing the payroll bags

from the vehicle. The Court nevertheless required the sentences

imposed on the counts relating to the theft of Donahue's gun to

run concurrently with the sentences imposed on the counts

relating to the theft of the payroll bags from the Money Center

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- 7 - Nos. 166-167

(see id. at 453-454). 

With this understanding of Ramirez, the People's

argument that a consecutive sentence was authorized for the

completed robbery because defendant engaged in a separate act or

"bodily movement" to take the purse does not withstand scrutiny. 

The victim of the completed robbery testified at trial that as

she was complying with defendant's demands to drop to the ground,

she put her purse on the ground next to her. She further

testified that defendant "kicked [her] purse over to his friend

and told him to pick it up, which he did." She did not testify

that defendant accomplished the taking of her purse through any

additional act or threat of force directed specifically at her. 

Under Laureano and Ramirez, then, the relevant actus reus was the

same for both the completed robbery and the attempted robberies 

-- the display of a firearm -- and the taking of the purse was

not a separate and distinct act authorizing consecutive

sentences. Concurrent sentences were therefore required. 

If the People were correct about the proper

interpretation of Ramirez, consecutive sentences would have been

permissible for the theft of Donahue's gun and the theft of the

payroll bags. The rule that can be distilled from Ramirez is

that separate and distinct acts of force or threats of force

against a particular victim may authorize consecutive sentences

for robbery, but if a single act or threat of force is used to

accomplish a robbery of multiple victims, the mere taking or

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- 8 - Nos. 166-167

asportation of property, even if accomplished through separate

"bodily movements," does not allow for consecutive sentencing. 

The People do not argue that defendant's act of kicking the purse

to his accomplice was an act of force or threat of force against

the robbery victim herself, so the Court's analysis in Ramirez

regarding the counts pertaining to the robbery of Bailey is

inapposite, inasmuch as a separate and distinct act of force was

committed against Bailey (see Ramirez, 89 NY2d at 454). Here,

defendant concedes that a consecutive sentence would have been

authorized had he committed a separate act or threat of force

against the robbery victim herself. 

One might posit that our holding in Ramirez was a

result of the fact that the Money Center was a company and not a

human victim against which an act or threat of force could be

directed. We stated in Ramirez, however, that "[d]espite the

fact that the stolen property belonged to two different victims,

it is the acts of the defendant that control" (id. at 453

[emphasis added]). We have consistently examined the actions of

the defendant, and not the number of victims, even those of the

human variety, in determining whether consecutive sentences were

legally authorized. For example, in People v McKnight (16 NY3d

43 [2010]), we held that consecutive sentences were permissible

for the shooting of two victims because the defendant and his

accomplice fired multiple shots at the victims, but we noted that

"[i]f it were otherwise -- if the two shots that hit [the first

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- 9 - Nos. 166-167

victim] were the only shots fired at [the second victim] -- we

would agree that concurrent sentencing was mandated" (id. at 48-

49). Similarly, in People v Battles (16 NY3d 54 [2010], cert

denied -- US --, 132 S Ct 123 [2011]), we held that consecutive

sentences were authorized where the defendant engaged in separate

acts by pouring gasoline over three victims (see id. at 57, 59). 

With respect to a fourth victim, however, who "was never doused

with gasoline, but rather, was sprayed as a result of the dousing

of the others," we held that a concurrent sentence was required

(id. at 59). 

Here, defendant accomplished both the completed robbery

and the attempted robberies through an action directed toward the

group as a whole -- he waved the gun at the group collectively

and threatened them collectively with death if they did not

comply with his demands to get on the ground. Again, the taking

of the purse did not involve a separate act or threat of force

directed against the robbery victim herself, but rather the mere

asportation of property, which, pursuant to our holding in

Ramirez, does not authorize consecutive sentences under Penal Law

§ 70.25 (2). The People did not meet their burden to demonstrate

that defendant directed any act of force or threat of force at

the robbery victim in particular. 

In contrast, under the majority's holding, even if a

robbery of a group of people is accomplished through one singular

act of force or threat of force, a consecutive sentence will be

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- 10 - Nos. 166-167

authorized for each instance where the defendant engages in a

separate bodily movement to accomplish the taking of property. 

This holding is contrary to our decision in Ramirez.1

Whether the taking of the purse was a separate and

distinct act is not a factual question for the trial court to

resolve in its discretion. This Court has no power to resolve

factual questions. Accordingly, if the issue whether the People

have met their burden to demonstrate that the defendant committed

the crimes through separate and distinct acts were a factual

question, this Court would have no power to address it. Yet we

have addressed it, many times (see e.g. Rodriguez, 25 NY3d at

244-245 [holding that the People demonstrated that the crimes at

issue were committed by separate and distinct acts]; Ramirez, 89

NY2d at 452-454 [rejecting the People's argument regarding

separate and distinct acts with respect to certain counts, but

holding that the People met their burden on that issue with

respect to other counts]; Laureano, 87 NY2d at 644-645 [holding

1 Moreover, the majority's holding could produce

anomalous results. If, for example, a defendant approaches a

group of five people, displays a firearm, and collectively

directs them to throw their wallets toward him, the defendant's

separate acts of bending down to pick up each of the five wallets

from the ground will permit five consecutive sentences for

robbery under the majority's analysis. The majority states that

consecutive sentences may be legally authorized under that

scenario, but that the sentencing court would have the discretion

to impose either consecutive or concurrent sentences (see

majority op at 10-11 n 4). In my view, however, Ramirez requires

the conclusion that consecutive sentences would not be

permissible in that scenario, and the sentencing court would be

required by law to impose concurrent sentences. 

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- 11 - Nos. 166-167

that the People failed to meet their burden to demonstrate that

the crimes involved two separate and distinct acts]). These

cases demonstrate that although the issue involves some factual

analysis, we have treated the issue whether the People met their

burden to demonstrate that the crimes were committed through

separate and distinct acts as a legal question. Once the People

have met their legal burden to establish that the crimes were

committed through separate and distinct acts, then the sentencing

court has the discretion to impose consecutive or concurrent

sentences (see Rodriguez, 25 NY3d at 244). Here, the People did

not meet that burden. 

I therefore would hold that the taking of the purse was

not a separate and distinct act authorizing a consecutive

sentence for the completed robbery. Defendant legally could be

charged with four different counts of robbery or attempted

robbery, one for each victim, but because defendant accomplished

those robberies through the same act or threat of force,

concurrent sentences were required under the Penal Law. I would

modify the order of the Appellate Division by requiring that the

sentence imposed on count two be served concurrently with the

sentences imposed on counts five through seven. 

II.

With respect to the second appeal, the sentence imposed

on count one, charging defendant with attempted felony murder in

the first degree, was required to run concurrently with the

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- 12 - Nos. 166-167

sentence imposed on the underlying felony. I agree with the

majority that, due to the possibility that the People could

correct their failure to specify the underlying felony during a

retrial on count one, defendant's plea was rational and need not

be vacated. I write separately, however, because in my view, the

Court should definitively reject the People's argument that the

sentence imposed on the attempted first-degree felony murder

charge could run consecutively to the sentence imposed on the

underlying felony. 

A.

I agree with the majority's observation that this Court

has not yet directly addressed whether a sentence imposed upon a

conviction of murder in the first degree pursuant to Penal Law §

127.27 (1) (a) (vii), i.e., first-degree felony murder, must run

concurrently with the sentence imposed on the underlying felony

(see majority op at 12). New York courts have long held,

however, that a sentence imposed upon a conviction of seconddegree felony murder must run concurrently with the sentence

imposed on the underlying felony (see e.g. People v Parks, 95

NY2d 811, 815 [2000]; People v Dennis, 91 AD3d 1277, 1280 [4th

Dept 2012], lv denied 19 NY3d 995 [2012]; People v Faulkner, 36

AD3d 951, 953 [3d Dept 2007], lv denied 8 NY3d 922 [2007]; 

People v Leftenant, 22 AD3d 603, 605 [2d Dept 2005], lv denied 6

NY3d 755 [2005]; People v Slater, 268 AD2d 260, 260-261 [1st Dept

2000], lv denied 94 NY2d 892, 925 [2000]; People v Leo, 255 AD2d

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- 13 - Nos. 166-167

458, 459 [2d Dept 1998], lv denied 93 NY2d 973 [1999]). The

People do not contest this authority. 

 Rather, the People argue that the same rule should not

apply to first-degree felony murder. The People contend that, in

contrast to second-degree felony murder, with respect to firstdegree felony murder, "the 'in furtherance' element of the

attempted murder is part of the mens rea rather than the actus

reus," and, as such, "the acts constituting robbery and attempted

murder are separate even though the intents served by those

separate acts are interrelated." 

The People's argument is without merit. Both the

second-degree felony murder statute and the first-degree felony

murder statute require the homicide to be committed "in the

course of and in furtherance of" the underlying felony or

immediate flight therefrom (see Penal Law §§ 125.25 [3]; 125.27

[1] [a] [vii]).2 To the extent the People's argument is based on

the mens rea of first-degree felony murder, which, unlike seconddegree felony murder, requires the defendant to commit the murder

intentionally (see Penal Law § 125.27 [1]), this Court has always

held that it is the acts of the defendant, and not the intent

with which he or she acted, that control for consecutive

sentencing purposes (see McKnight, 16 NY3d at 49; People v

Frazier, 16 NY3d 36, 41 [2010]; Laureano, 87 NY2d at 644). 

2 For this reason, the People's reliance on People v

Rodriguez, where consecutive sentences were permissible (25 NY3d

238, 245 [2015]), is unavailing. 

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- 14 - Nos. 166-167

To the extent that the People argue that first-degree

felony murder is distinguishable from second-degree felony murder

because first-degree felony murder requires both an underlying

felony and an intentional killing committed by the defendant

himself, that argument is refuted by the Court's holding in

People v Rosas (8 NY3d 493 [2007]). In Rosas, the defendant shot

his former girlfriend and her husband to death (see id. at 495). 

Even though the victims were killed by separate shots, and the

defendant therefore engaged in two separate actions to accomplish

the killings, the Court held that concurrent sentences were

required for each count of murder in the first degree because

Penal Law § 125.27 (1) (a) (viii) "requires multiple victims to

constitute a single offense and thus contemplates the possibility

of multiple shots" (id. at 499). The Court reasoned that it must

"consider the entire actus reus of the offense with all its

components when determining whether consecutive sentences are

appropriate" (id. at 497 [emphasis added]). 

Likewise, the first-degree felony murder statute

requires both an intentional killing and an underlying felony to

constitute a single offense, and therefore contemplates the

possibility of multiple acts or "bodily movements" encompassed

within a single offense (see Penal Law § 125.27 [1] [a] [vii]). 

Consequently, the fact that defendant here engaged in separate

acts to accomplish the underlying felony and to shoot the male

victim does not authorize consecutive sentencing, because the

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- 15 - Nos. 166-167

statute requires that the defendant commit both an intentional

homicidal act and an underlying felony to be guilty of the

offense. 

If the People wanted to ensure the possibility of a

consecutive sentence on the attempted murder count, the People

could have charged defendant with attempted second-degree murder

under Penal Law § 125.25 (1), which would not have required proof

that defendant shot the victim during the course of and in

furtherance of a robbery or attempted robbery. Then, however,

the People would have been unable to request a sentence with a

maximum term of life imprisonment (see generally Rosas, 8 NY3d at

499-500). 

The majority acknowledges that at the time of

defendant's plea, there was case law from the Second and Third

Departments holding that a sentence for first-degree felony

murder must run concurrently with the sentence imposed on the

underlying felony (see majority op at 12, citing People v Cherry,

46 AD3d 1234, 1238 [3d Dept 2007], lv denied 10 NY3d 839 [2008];

People v Middleton, 32 AD3d 557, 557-558 [3d Dept 2006]; People v

Alves, 288 AD2d 483, 484 [2d Dept 2001]). One could interpret

the Fourth Department's decision here as a holding that the

sentence imposed on the attempted first-degree felony murder

count could have run consecutively to the sentence imposed on the

underlying felony (see People v Couser, 126 AD3d 1419, 1422 [4th

Dept 2015]). The Court should reject the People's arguments and

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- 16 - Nos. 166-167

conclusively hold that the sentence imposed on a first-degree

felony murder charge must run concurrently with the sentence

imposed on the underlying felony.3

B.

The People failed to specify in the indictment or

during trial which count of robbery or attempted robbery served

as the underlying felony for the attempted murder count, and the

court did not clarify that issue in its instructions to the jury. 

It is well settled that in that situation, the sentence imposed

on the attempted first-degree felony murder count was required to

run concurrently with all the sentences imposed on the robbery

and attempted robbery counts (see Parks, 95 NY2d at 815).

Before retrial on count one, defendant pleaded guilty

to attempted murder in the first degree as charged in the

indictment, not to a lesser included offense. Although he also

received the minimum sentence of 15 years' to life imprisonment

3 The majority concludes that it has no occasion to

address the issue in part because defendant failed to raise the

issue of the validity of his plea as it relates to his

misunderstanding of his sentencing exposure until his reply brief

(see majority op at 15). I respectfully disagree. In his main

brief filed with this Court, as part of his contention that the

record fails to demonstrate that his guilty plea was knowing,

voluntary, and intelligent, defendant argued that his

misunderstanding of his sentencing exposure "casts substantial

doubt on the voluntariness of the plea as it appears to undermine

any reasonable motive [defendant] might have had for pleading

guilty to a crime that he insisted he did not commit." Defendant

contended that it should be clear under the circumstances that a

decision to plead guilty "would not be knowing and rational if

there is no legal possibility of consecutive sentences." 

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- 17 - Nos. 166-167

as part of the plea bargain, the possibility that he could

receive the maximum sentence of 25 years to life if convicted on

count one after retrial would have been of no consequence to

defendant, who was already serving a determinate term of 48

years' imprisonment, so long as the sentence on count one was

concurrent. As I have explained, defendant would have been

entitled to a concurrent sentence on count one by law even if he

were convicted after trial. If not for the possibility that,

during the retrial on count one, the People could have specified

which robbery or attempted robbery was the underlying felony for

the attempted felony murder charge, I would agree with defendant

that vacatur of his plea is required. 

As the majority notes, however, the People could have

specified during a retrial on count one that the underlying

felony for the attempted felony murder was count five, charging

defendant with the attempted robbery of the shooting victim

(see majority op at 15-16). I agree with the majority that the

possibility that the People could have corrected that lack of

specificity during a retrial on count one renders defendant's

decision to accept a plea bargain in which he received the

minimum concurrent sentence knowing and rational. I therefore

concur in the majority's resolution of the second appeal. 

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- 18 - Nos. 166-167

* * * * * * * * * * * * * * * * *

For Case No. 166: Order, insofar as appealed from, affirmed. 

Opinion by Judge Abdus-Salaam. Chief Judge DiFiore and Judges

Pigott and Garcia concur. Judge Fahey dissents in part in an

opinion in which Judges Rivera and Stein concur, Judge Stein

concurring in so much of the opinion as relates to the appeal

herein.

For Case No. 167: Order affirmed. Opinion by Judge

Abdus-Salaam. Chief Judge DiFiore and Judges Pigott, Stein and

Garcia concur, Judge Stein concurring in so much of the opinion

as relates to the appeal herein. Judge Fahey concurs in result

in a separate concurring opinion in which Judge Rivera concurs.

Decided November 22, 2016

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