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

1292/14
KA 10-01387
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PHILLIP COUSER, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Dennis M. Kehoe, A.J.), rendered April 8, 2010. The judgment
convicted defendant, upon a jury verdict, of robbery in the first
degree, criminal possession of a weapon in the second degree (two
counts), attempted robbery in the first degree (three counts) and
criminal possession of a weapon in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that the sentences
imposed on the fifth through seventh counts run concurrently with each
other and consecutively to the sentence imposed on the second count,
and as modified the judgment is affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon a jury verdict of, inter alia, robbery in the
first degree (Penal Law § 160.15 [4]) and three counts of attempted
robbery in the first degree (§§ 110.00, 160.15 [4]). In appeal No. 2,
defendant appeals from a judgment convicting him upon his Alford plea
of attempted murder in the first degree (§§ 110.00, 125.27 [1] [a]
[vii]). The charges arose from defendant’s display of a gun and
threats to a group of five people in a park, the theft of a purse from
a female victim in the group, the firing of a shot from that gun,
which grazed the head of a male victim in the group, and the recovery
of a different gun from defendant’s residence at a later date.

     In appeal No. 1, defendant contends that he was denied a fair
trial by Supreme Court’s (Kehoe, A. J.) Molineux ruling and,
alternatively, by the court’s failure to give a limiting instruction
with respect to the Molineux evidence. Defendant did not preserve his
alternative contention for our review, and we decline to exercise our
power to review it as a matter of discretion in the interest of
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justice (see People v Williams, 107 AD3d 1516, 1516, lv denied 21 NY3d
1047; see also CPL 470.15 [6] [a]). We conclude that the court
properly ruled that the People could present Molineux evidence that
defendant was on probation at the time of the crimes herein inasmuch
as such evidence was “necessary in order to ‘complete the narrative of
the crime[s] charged’ ” (People v Copeland, 43 AD3d 1436, 1437, lv
denied 9 NY3d 1032).

     In any event, we conclude that any error in the admission of
Molineux evidence is harmless. The evidence at trial included the
testimony of four of the five victims from the park, who testified
that defendant was the man who pointed a gun at them, ordered the
group to the ground on threat of killing someone, directed another
person to grab a purse from a victim, and put the gun to the back of
the head of one of the victims and fired a shot, which grazed the back
of the head of that victim. The evidence at trial also included
defendant’s statements to the police, in which he admitted to
participating in the gunpoint robbery and possessing the gun found at
his residence. Thus, the evidence of guilt is overwhelming (see
People v Kelly, 71 AD3d 1520, 1521, lv denied 15 NY3d 775; People v
Baker, 21 AD3d 1435, 1436, lv denied 6 NY3d 773), and we conclude that
there is no significant probability that “the jury would have
acquitted defendant if the allegedly improper Molineux evidence had
been excluded” (People v Casado, 99 AD3d 1208, 1212, lv denied 20 NY3d
985; see generally People v Crimmins, 36 NY2d 230, 241-242).

     Contrary to defendant’s further contention in appeal No. 1, we
conclude that he received effective assistance of counsel (see
generally People v Baldi, 54 NY2d 137, 147). “Under the
circumstances, and in light of the People’s case, . . . [defense]
counsel pursued a logical defense strategy and successfully” avoided a
conviction at trial on the highest count of the indictment (People v
Hall, 68 AD3d 1133, 1133, lv denied 14 NY3d 800; see generally People
v Benevento, 91 NY2d 708, 712-713).

     Defendant further contends in appeal No. 1 that the court’s
imposition of four consecutive sentences on the second count, for
robbery in the first degree, and the fifth through seventh counts, for
attempted robbery in the first degree, is illegal pursuant to Penal
Law § 70.25 (2) because those counts are based upon a single act,
i.e., the display of a gun to the group. We agree in part with
defendant and conclude that the actus reus of the fifth through
seventh counts was a single act constituting one offense, and thus the
sentences on those counts must run concurrently with each other (see
generally People v Wright, 19 NY3d 359, 363-364). We therefore modify
the sentence in appeal No. 1 accordingly. The effect of the
modification is a reduction of the aggregate sentence to a total of 33
years of imprisonment, i.e., 18 years of imprisonment for the second
count plus 15 years of imprisonment for the fifth through seventh
counts.

     We further conclude, however, that the court properly ordered the
sentence on the second count to run consecutively to the sentences on
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counts five through seven. “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”
(Penal Law § 70.25 [2]). “It is well settled 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 Jackson, 56 AD3d 1295, 1296, quoting People v Laureano, 87
NY2d 640, 643; see People v Wright, 19 NY3d 359, 363; § 70.25 [2]).
“If the statutory elements . . . overlap under either prong of
[section 70.25], the People may yet establish 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). It is equally well settled, however, that “trial courts
retain consecutive sentence discretion when separate offenses are
committed through separate acts, though they are part of a single
transaction” (People v Brown, 80 NY2d 361, 364). Here, the second
count included an additional act, i.e, the taking of the purse, which
allowed the court to impose a consecutive sentence thereon.

      In appeal No. 2, defendant contends that his plea must be vacated
if, in appeal No. 1, the conviction is reversed or the aggregate
sentence is reduced. After defendant was sentenced in appeal No. 1,
the court (Affronti, J.) accepted defendant’s Alford plea to attempted
murder in the first degree and sentenced him in accordance with a plea
offer to the minimum sentence, i.e., 15 years to life imprisonment, to
run concurrently with the sentence in appeal No. 1. Inasmuch as we
are not reversing his conviction in appeal No. 1, “[t]he critical
question is whether the . . . reduction of the preexisting sentence
nullifie[s] a benefit that was expressly promised and was a material
inducement to the [Alford] plea” (People v Rowland, 8 NY3d 342, 345
[emphasis added]). We conclude that the modification of the aggregate
sentence in appeal No. 1 to 33 years does not nullify a benefit that
was expressly promised and was not a material inducement to
defendant’s plea, and defendant is therefore not entitled to vacatur
of the plea (see id.; see generally People v Pichardo, 1 NY3d 126,
129).

     In appeal No. 2, defendant further contends that his plea must be
vacated because he was denied effective assistance of counsel based on
defense counsel’s failure to recognize that defendant was not subject
to a consecutive sentence for the attempted murder count. To the
extent that defendant’s contention concerning ineffective assistance
of counsel survives his Alford plea (see People v Thompson, 4 AD3d
785, 785-786, lv denied 2 NY3d 808), we reject that contention. The
record establishes that defendant received “an advantageous plea and
nothing in the record casts doubt on the apparent effectiveness of
counsel” (People v Ford, 86 NY2d 397, 404). In any event, contrary to
defendant’s contention, we conclude that a concurrent sentence was not
required for the attempted murder count in appeal No. 2 because the
shooting of the male victim was an act separate and distinct from the
criminal acts in appeal No. 1. The sentence in appeal No. 2 was
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therefore “not subject to the strictures of Penal Law § 70.25 (2)”
(People v Rodriquez, 79 AD3d 644, 645, affd 18 NY3d 667; see generally
People v Battles, 16 NY3d 54, 58-59). “Where, as here, separate acts
are committed against different victims during the same criminal
transaction, the court may properly impose consecutive sentences in
the exercise of its discretion” (People v Lemon, 38 AD3d 1298, 1299,
lv denied 9 NY3d 846, reconsideration denied 9 NY3d 962). We have
reviewed defendant’s remaining contention in appeal No. 2 and conclude
that it lacks merit.




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