        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

7
KA 13-01456
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RYAN P. BRAHNEY, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.

RYAN P. BRAHNEY, DEFENDANT-APPELLANT PRO SE.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Cayuga County Court (Thomas G.
Leone, J.), rendered December 3, 2012. Defendant was resentenced as a
second felony offender.

     It is hereby ORDERED that the resentence so appealed from is
affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him following a bench trial of, inter alia, two counts each
of murder in the second degree (Penal Law § 125.25 [1], [3]
[intentional and felony murder]), burglary in the first degree (§
140.30 [2], [3]), and criminal contempt in the first degree (§ 215.51
[b] [v], [vi]). In appeal No. 2, defendant appeals from a resentence
based upon County Court’s failure to sentence him as a second felony
offender (see generally CPL 400.21 [4]). According to the evidence
presented at trial, defendant unlawfully entered the home of his
former girlfriend and their three-year-old son, while they were
asleep, and stabbed his former girlfriend 38 times, causing her death.

     Contrary to defendant’s contention in appeal No. 1, the verdict
of guilty of intentional murder is not against the weight of the
evidence inasmuch as he failed to prove by a preponderance of the
evidence that he “acted under the influence of extreme emotional
distress for which there was a reasonable explanation or excuse, the
reasonableness of which is to be determined from the viewpoint of a
person in [his] situation under the circumstances as [he] believed
them to be” (Penal Law § 125.25 [1] [a]; see § 25.00 [2]). The
evidence established that defendant was very angry when he observed a
man, who had recently been released from prison for a drug-related
conviction, at the home of his former girlfriend earlier in the
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                                                         KA 13-01456

evening. Defendant returned to her home a few hours later, at which
time he broke a window, entered the apartment, and dragged the victim
downstairs and killed her. Following his arrest, defendant made
several statements justifying his behavior on the alleged ground that
his former girlfriend had exposed his son to drugs and to “drug
dealers.”

     Defendant presented the testimony of his expert psychologist who
opined that defendant had an underlying and undiagnosed condition of
bipolar disorder that was at the root of his inability to control his
rage with respect to his perception that the victim was exposing his
son to drug use. Defendant’s expert stated that defendant engaged in
a “frenzied attack” and that he had a “spotty” memory regarding the
attack. The People presented the testimony of their expert
psychiatrist who disagreed that defendant had bipolar disorder and
opined that defendant displayed the classic traits of antisocial
personality disorder. The People’s expert further testified that
defendant “is a violent man,” as evidenced by his criminal history of
violent crimes, and he opined that defendant’s concern for his son was
reasonable, but that his actions in response to that concern were not.
The People also presented evidence that defendant stated in a recorded
jail telephone call approximately three months prior to the murder
that he “was going to . . . murder her” and that he was going “take
[his] jack knife and carve her . . . neck out.” Defendant did not
mention that he was concerned about his son’s welfare during that
conversation.

     It is well established that “a brutal assault would not itself
suffice to demonstrate extreme emotional disturbance” (People v
McKenzie, 19 NY3d 463, 467; see People v Roche, 98 NY2d 70, 77-78;
People v Mohamud, 115 AD3d 1227, 1228-1229, lv denied 23 NY3d 965).
Although the Legislature recognized that “some homicides are worthy of
mitigation because they ‘result from an understandable human response
deserving of mercy’ ” (Roche, 98 NY2d at 75; see People v Harris, 95
NY2d 316, 318; People v Casassa, 49 NY2d 668, 680-681, cert denied 449
US 842), that is not the case here.

     Defendant further contends in appeal No. 1 that the court failed
to comply with CPL 710.60 inasmuch as the court granted his pretrial
motion seeking a Huntley hearing but failed to conduct one. We
conclude that, by failing to object to the testimony of the arresting
officer and the three witnesses who heard defendant make inculpatory
statements during a standard suicide risk assessment during the
booking process, defendant waived his right to a Huntley hearing with
respect to those inculpatory statements (see People v Wilson, 90 AD3d
1155, 1155, lv denied 18 NY3d 963). Although defense counsel objected
to references in the prosecutor’s opening statement to inculpatory
statements made by defendant during recorded telephone calls with
family members, those statements are not subject to a CPL 710.30
notice or a Huntley hearing inasmuch as they were not made to a
“public servant” (CPL 710.30 [1]). We conclude that defendant did not
waive a Huntley hearing with respect to an inculpatory statement he
made to an officer while in a holding cell because he objected to the
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                                                         KA 13-01456

testimony at trial, and the objection was overruled following an off-
the-record discussion. We therefore conclude that the court erred in
permitting the testimony without conducting a Huntley hearing, or
stating on the record its determination of that part of defendant’s
motion seeking to suppress that statement (see CPL 710.60 [6]; see
generally People v Pallagi, 91 AD3d 1266, 1267-1268). We nevertheless
conclude that the error is harmless. We note that the record
establishes that the statement was spontaneous and not “ ‘the product
of an interrogation environment [or] the result of express questioning
or its functional equivalent’ ” (People v Sierra, 85 AD3d 1659, 1660,
lv denied 17 NY3d 905). The evidence of defendant’s guilt is
overwhelming, and we conclude that there is no reasonable possibility
that the error contributed to the conviction (see generally People v
Crimmins, 36 NY2d 230, 237).

     Defendant failed to preserve for our review his contention in
appeal No. 2 that the court punished him for exercising his right to a
trial by imposing a sentence more severe than that offered as part of
the plea agreement (see People v Brink, 78 AD3d 1483, 1485, lv denied
16 NY3d 742, reconsideration denied 16 NY3d 828). In any event, we
conclude that defendant’s contention is without merit. “[T]here is no
indication in the record before us that the sentencing court acted in
a vindictive manner based on defendant’s exercise of the right to a
trial” (id.).

     We reject defendant’s further contention in appeal No. 2 that the
court erred in directing that the sentences on the two counts of
burglary in the first degree (Penal Law § 140.30 [2], [3]), which run
concurrently with each other, shall run consecutively to the sentence
imposed on the count of intentional murder (§ 125.25 [1]). Defendant
was convicted of burglary for unlawfully entering the victim’s
dwelling, with the aggravating factors of causing physical injury to
the victim (§ 140.30 [2]), and using or threatening the immediate use
of a dangerous instrument (§ 140.30 [3]), i.e., a butcher knife.
Defendant was charged with intentionally causing the victim’s death by
repeatedly stabbing her with a butcher knife. It is well established
that, in considering whether sentences must run concurrently under
Penal Law § 70.25 (2), “the 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)” (People v Laureano, 87 NY2d 640, 643). “[W]hen the
actus reus is a single inseparable act that violates more than one
statute, single punishment must be imposed” (People v Frazier, 16 NY3d
36, 41 [internal quotation marks omitted]; see People v Parks, 95 NY2d
811, 814; Laureano, 87 NY2d at 645). Although the actus reus elements
of the burglary counts and the murder count overlap under the facts
presented here, we nevertheless conclude that the People
“establish[ed] the legality of consecutive sentencing by showing that
the ‘acts or omissions’ committed by defendant were separate and
distinct acts” (Laureano, 87 NY2d at 643). The evidence established
that, after defendant entered the apartment through a window that he
smashed with a cinder block, he dragged the victim from her bed and
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                                                           KA 13-01456

down the stairs to the living room, where he killed her.

     We agree with our dissenting colleagues that the blood evidence
located on the wall of the upstairs hallway and on the stairs
establishes that defendant caused physical injury to the victim while
she was still upstairs. We note, however, that the photographic
evidence demonstrates that there was a small blood smear on the wall
of the upstairs hallway and drops of blood on the stairs. By
contrast, there was a tremendous amount of blood evidence in the
downstairs of the dwelling where the victim died. Furthermore, in a
recorded telephone conversation to his mother, defendant stated that
he “dragged [the victim] down the stairs and murdered her.” We
conclude that the location and amount of blood evidence in the
upstairs and in the downstairs of the dwelling confirm this statement.
We therefore conclude that the People established that there were
separate offenses, i.e., that the burglary was completed while the
victim was still upstairs and that the murder occurred downstairs (see
People v Yong Yun Lee, 92 NY2d 987, 988-989; cf. People v Wright, 19
NY3d 359, 366-367; Laureano, 87 NY2d at 645). Thus, we conclude that
the burglary and the murder offenses were “committed through separate
acts, though they are part of a single transaction” (People v Brown,
80 NY2d 361, 364; see People v Brathwaite, 63 NY2d 839, 843; People v
Walker, 117 AD3d 886, 887, lv denied 24 NY3d 965). Also contrary to
defendant’s contention in appeal No. 2, the resentence is not unduly
harsh and severe.

     Defendant contends in his pro se supplemental brief with respect
to appeal No. 1 that he was denied his right to due process because he
did not give a knowing and voluntary consent to the stipulation that
he caused the victim’s death; he was denied his right to be present at
sidebar conferences; he was not adequately advised of his right to
testify; and he was denied effective assistance of counsel. The
record establishes that defendant’s consent to the stipulation, which
he signed and which was reviewed on the record, was knowing and
voluntary. The record also establishes that the sidebar conferences
involved legal issues, and not “ ‘factual matters about which
defendant might have peculiar knowledge that would be useful in
advancing the defendant’s or countering the People’s position’ ”
(People v Spotford, 85 NY2d 593, 596), and thus he did not have a
right to be present. Based upon remarks that defendant made during
the prosecutor’s summation, we conclude that he understood that he had
the right to testify. To the extent that defendant’s contention in
his pro se supplemental brief that he was denied effective assistance
of counsel involves matters that appear on the record, we conclude
that they are without merit and that defendant was afforded meaningful
representation (see generally People v Baldi, 54 NY2d 137, 147). To
the extent that his contentions involve matters outside the record,
they must be raised by a motion pursuant to CPL article 440 (see
People v Washington, 122 AD3d 1406, 1406).

     All concur except CENTRA and LINDLEY, JJ., who dissent and vote to
modify in accordance with the following memorandum: We respectfully
dissent inasmuch as we agree with defendant that County Court erred in
directing that the sentences on the two counts of burglary in the
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                                                         KA 13-01456

first degree (Penal Law § 140.30 [2], [3]), which run concurrently
with each other, shall run consecutively to the sentence imposed on
the count of intentional murder in the second degree (§ 125.25 [1]).
In our view, the consecutive sentences are illegal under the facts of
this case.

     Pursuant to the two prongs set forth in Penal Law § 70.25 (2),
the court is required to impose concurrent sentences where a single
act constitutes two different offenses, or a single act constitutes
both one of the offenses charged and a material element of the other
(see People v Parks, 95 NY2d 811, 814-815; People v Laureano, 87 NY2d
640, 643). Where separate acts are committed in the course of a
criminal transaction, or where one act does not constitute a material
element of a charged crime, the court may, in its discretion, impose
consecutive sentences (see People v Bryant, 92 NY2d 216, 230-231;
People v Brown, 80 NY2d 361, 363-364). Whether a court has the
discretion to impose consecutive sentences thus depends on an analysis
of the statutory definition of the actus reus for each offense (see
Laureano, 87 NY2d at 643; People v Day, 73 NY2d 208, 211).

     Here, the People failed to meet their burden of establishing that
the burglary and murder offenses were committed by separate and
distinct acts (see Laureano, 87 NY2d at 643; see generally People v
Rosas, 8 NY3d 493, 496). Defendant was convicted of murdering the
victim by stabbing her repeatedly with a knife (see Penal Law § 125.25
[1]), and was convicted of burglarizing the victim’s residence by
entering her dwelling with the intent to commit a crime therein and
causing physical injury to her (§ 140.30 [2]) and using or threatening
the immediate use of a knife (§ 140.30 [3]). Contrary to the People’s
contention, the burglary was not complete as soon as defendant entered
the victim’s dwelling. This would be true if defendant had been
charged and convicted of burglary in the second degree (see § 140.25
[2]; People v Frazier, 16 NY3d 36, 41). Defendant, however, was
charged and convicted of two counts of burglary in the first degree,
which required the People to establish that, in addition to entering
and remaining unlawfully in a dwelling with the intent to commit a
crime therein, defendant caused physical injury to the victim and used
or threatened the immediate use of a dangerous instrument (§ 140.30
[2], [3]).

     To show that the burglary and murder offenses were committed
through separate and distinct acts, the People must point to
“identifiable facts” in the record (People v Ramirez, 89 NY2d 444,
451; see Laureano, 87 NY2d at 644). At trial, a recorded phone call
from defendant while he was in jail to his mother was played to the
court, in which defendant stated that he went inside the victim’s
residence, dragged her down the stairs and murdered her. A police
officer testified at trial that he found the victim with multiple stab
wounds in the downstairs of the residence. There were signs of a
struggle in the master bedroom upstairs, and the victim had defensive
wounds. There was blood “all over the place” downstairs, and there
was also some blood on the wall outside the master bedroom, on the
landing, on the wall next to the staircase, and on the stairs. The
parties stipulated that the forensic analysis showed that it was the
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                                                         KA 13-01456

victim’s blood on the wall upstairs and on the staircase. The Medical
Examiner testified that the victim sustained 38 knife wounds. He did
not specify which of the wounds sustained by the victim was fatal, but
rather testified that she died as a result of multiple stab wounds to
the neck, chest, and back.

     The majority concludes that the burglary was completed while the
victim was still upstairs, and that she was not murdered until after
she was dragged downstairs, and thus that the burglary and murder
offenses were committed through separate acts. In our view, we cannot
determine that the burglary and murder offenses were separate and
distinct because it is possible that the act of causing physical
injury to the victim and using the knife was also the act that caused
her death. Considering the fact that the victim’s blood was found
upstairs and on the staircase, it is apparent that defendant stabbed
the victim at least once while they were upstairs, which would
complete the burglary offenses. Unlike the majority, however, we
conclude that the murder offense may also have occurred through that
same act. In other words, the wound or wounds that the victim
sustained while upstairs may have ultimately caused her death. Where,
as here, the People failed to meet their burden, concurrent sentences
are required (see People v Amato, 1 AD3d 713, 716-717, lv denied 1
NY3d 594). We would therefore modify the resentence by directing that
the sentences imposed for the counts of burglary in the first degree
shall run concurrently with the sentence imposed for intentional
murder in the second degree.




Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
