People v. Jones
838 N.Y.S.2d 126
N.Y. App. Div.
2007
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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ANDREW JONES, Appellant.

Appellate Division of the Supreme Court of New York, Second Department

January 30, 2007

838 N.Y.S.2d 126

Demarest, J.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered May 27, 2005, convicting him of murder in the second degree and assault in the second degree, upon a jury verdict, and sentencing him to an indeterminate term of imprisonment of 25 years to life for murder in the second degree, to run consecutively to an indeterminate term of imprisonment of 12 years to life for assault in the second degree.

Ordered that the judgment is modified, on the law, by directing that the terms of imprisonment imposed shall run concurrently with each other; as so modified, the judgment is affirmed.

The defendant shot and killed the decedent and wounded the complainant. He was charged in the indictment, inter alia, with murder in the second degree and assault in the second degree and was convicted of those charges, upon a jury verdict.

The defendant‘s contention regarding the Supreme Court‘s Sandoval ruling (see ) is unpreserved for appellate review (see CPL 470.05 [2]; ). In any event, the Supreme Court‘s ruling struck an appropriate balance between the probative value of the defendant‘s prior crimes on the issue of his credibility and the possible prejudice to him (see ; ; ).

In the indictment, the defendant was charged with assault in the second degree as defined in Penal Law § 120.05 (2) using the doctrine of transferred intent, in that, with intent to cause physical injury to the decedent, the defendant caused physical injury to the complainant by means of a handgun. In its instructions to the jury, the court stated that the jury could find the defendant guilty of that charge if it found that the defendant‘s intent was to injure either the decedent or the complainant. The defendant objected to presenting these alternative theories to the jury.

Penal Law § 120.05 (2) defines assault in the second degree in the following manner:

“With intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument” (emphasis supplied).

The identity of the intended target is not an essential element of the crime (see ). The trial court‘s instructions were proper under the circumstances (see ; ).

On appeal, the defendant challenges the legality of imposing consecutive terms of imprisonment. This issue does not require preservation (see ; ).

Consecutive sentences may be imposed if “either the elements of the crimes do not overlap or if the facts demonstrate that the defendant‘s acts underlying the crimes are separate and distinct” (). If there has been a trial, the People may offer facts from the trial record to demonstrate that the acts underlying the crimes are separate and distinct (see ). There must be a sufficient factual basis for the court to conclude that the victims were hit with different bullets (see ; ).

In the instant case, the decedent was shot five times. No bullets were found in his body. The complainant suffered two bullet wounds: one in the right upper thigh and a graze wound along his right side. Five shell casings were found at the scene. There was no evidence to support the conclusion that the decedent and the complainant were hit by different bullets, and the record does not indicate that there were more than five bullets involved. Accordingly, the defendant‘s acts were not separate and distinct and the imposition of consecutive terms of imprisonment was improper (see ).

The defendant‘s remaining contention has been rendered academic in light of our determination (see ). Schmidt, J.P., Goldstein, Angiolillo and McCarthy, JJ., concur.