OPINION OF THE COURT
The primary issue presented by these cross appeals is whether defendant is subject to consecutive sentences for the crimes of burglary in the second degree and grand larceny in the third degree. Since we find consecutive sentences are authorized, we modify and remit to the Appellate Division for further proceedings.
Defendant broke into two Upper East Side apartments—each located on the fifth floor of a five-story walk-up. The crimes occurred within weeks of each other, in June and July 2004, respectively. In each case, the door had been forced open, the apartment had been ransacked and several thousand dollars worth of personal property had been stolen. Defendant’s fingerprints were found inside both apartments. After defendant was arrested, he failed to appear for a mandatory court date. He was taken into custody the following month in Pennsylvania and was returned to New York for trial.
In response to concerns raised by defense counsel about defendant’s lack of communication and his competence to stand trial, the court ordered an emergency examination pursuant to CPL 730.10. Two experts examined defendant and issued reports finding him unfit to proceed based on his inability to assist in his defense. The court confirmed the finding of unfitness and defendant was committed to Mid-Hudson Psychiatric Center for treatment. He was returned as competent to stand trial after approximately two weeks.
Supreme Court conducted a competency hearing. The People introduced into evidence reports from four experts, including one of the doctors who had previously found defendant unfit, each concluding that defendant was now competent to proceed to trial. Two of the psychiatrists testified on behalf of the People that defendant understood the nature of the proceedings and the charges. The defense called their own expert psychologist who testified that defendant had a severe mental disorder and was unfit to stand trial due to his inability to communicate with
After trial, defendant was convicted of three counts of burglary in the second degree, two counts of grand larceny in the third degree and one count of bail jumping. He was sentenced, as a persistent violent felony offender, to concurrent terms of 16 years to life for the burglary convictions to be served consecutive to concurrent terms of 2 to 4 years for the grand larceny convictions and consecutive to a term of 2 to 4 years on the bail jumping conviction.
The Appellate Division modified, on the law, by directing that the sentences for the larceny convictions be served concurrently with the sentences for the burglary convictions and, as so modified, affirmed. The Court determined that, since larceny was the only crime that satisfied the intent element of burglary, the acts making up each crime could not be viewed as separate and distinct (
The Penal Law dictates that concurrent sentences are required “[w]hen 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” (Penal Law § 70.25 [2]). We have held that a court must first look to the statutory definitions of the crimes to “determine whether the actus reus element is, by definition, the same for both offenses ... or if the actus reus for one offense is, by definition, a material element of the second offense” (People v Laureano,
Defendant was convicted of second-degree burglary, which is defined as knowingly entering or remaining unlawfully in a dwelling with the intent to commit a crime therein (see Penal Law § 140.25 [2]). He was also convicted of grand larceny in the third degree for stealing property valued at over $3,000 (see Penal Law § 155.35 [1]). These statutes do not contain the same actus reus. The crime of burglary was completed when defendant entered each complainant’s apartment with the intent to commit a crime. The ensuing larceny was a separate crime, perpetrated through defendant’s separate act of stealing property (see People v Yong Yun Lee,
Defendant emphasizes the finding below that larceny was the only crime that satisfied burglary’s intent requirement and posits that consecutive sentences would punish him twice for the same conduct. However, “[t]he 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” (People v Day,
Defendant, on his cross appeal, argues that the People failed to demonstrate by a preponderance of the evidence that he was competent to stand trial. In order to be found competent, a defendant must be capable of understanding the nature of the proceedings at issue and be able to assist in providing a defense (see CPL 730.10 [1]; People v Mendez,
Here, four experts provided reports concluding that defendant was fit to proceed to trial. Although the defense expert found him unfit, even that expert agreed that defendant understood the nature of the charges against him and the potential penalties involved. Supreme Court concluded that defendant’s lack of involvement and failure to communicate with his attorney was volitional because he preferred commitment to a secure psychiatric facility to incarceration. It appears somewhat unusual that defendant was returned as competent after spending only two weeks at Mid-Hudson Psychiatric Center following the prior finding of incompetence. However, that may have been the result of error in the initial determinations finding him unfit. This record affords no basis for finding defendant incompetent as a matter of law.
Defendant’s argument that the persistent violent felony offender sentencing scheme is unconstitutional fails under our line of precedent following Almendarez-Torres v United States (
Accordingly, the order of the Appellate Division should be modified by remitting to that Court for further proceedings in accordance with this opinion and, as so modified, affirmed.
Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.
Order modified, etc.