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

711
KA 13-00944
PRESENT: WHALEN, P.J., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHRISTOPHER YOUNG, DEFENDANT-APPELLANT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

CHRISTOPHER YOUNG, DEFENDANT-APPELLANT PRO SE.

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


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Supreme Court, Monroe County (Francis A. Affronti, J.), dated May
13, 2013. The order denied the motion of defendant to set aside his
sentence pursuant to CPL 440.20.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from an order denying his motion
to set aside his sentence pursuant to CPL 440.20, contending that he
was improperly sentenced to consecutive terms of imprisonment for the
intentional murder of two victims because the People failed to prove
at trial that the victims were killed by separate bullets. The proof
at trial tends to support defendant’s contention that he fired only
three bullets in the fatal interaction, and that the first victim, the
owner of the store where the murders occurred, was struck by all three
bullets. It also appears that the second victim, a young woman
standing behind the owner, was struck by one of the bullets that also
struck the owner. The record does not conclusively establish,
however, that the single bullet that was fatal to the young woman,
which was from the first shot taken by defendant, was also fatal to
the owner. Indeed, a witness who was present in the store at the time
of the shooting testified that the first shot struck the young woman,
and that defendant thereafter moved toward the owner and fired two
more shots at him, seemingly indicating that defendant did not believe
that his first shot was fatal to the owner.

     Although on defendant’s direct appeal the burden would have been
on the People to prove that consecutive sentencing was legal (see
                                 -2-                           711
                                                         KA 13-00944

People v Taveras, 12 NY3d 21, 25; People v Parks, 95 NY2d 811,
814-815; People v Laureano, 87 NY2d 640, 643), defendant did not raise
that issue on his direct appeal. On this CPL 440.20 motion to set
aside the sentence, the burden is on defendant to prove, by a
preponderance of the evidence, that the consecutive sentencing was not
authorized (see generally People v Lasky, 31 NY2d 146, 149). CPL
440.30 (4) (b) allows a court to deny a motion to set aside a sentence
without a hearing if the motion “is based upon the existence or
occurrence of facts and the moving papers do not contain sworn
allegations substantiating or tending to substantiate all the
essential facts.” Here, defendant’s motion papers do not contain
sworn allegations tending to substantiate the “essential fact” on
which his motion rests, i.e., that the single bullet that killed the
young woman also killed the owner, and that the murders were therefore
the result of a single act, requiring the imposition of concurrent
sentences (see People v Brathwaite, 63 NY2d 839, 843; People v
Scandell, 143 AD2d 423, 423-424, lv denied 73 NY2d 790, cert denied
489 US 1080; cf. People v Luster, 148 AD2d 305, 306, lv denied 74 NY2d
666). Thus, we conclude that Supreme Court properly denied
defendant’s motion without a hearing.

     Finally, defendant’s contention that his sentence is unduly harsh
and severe is not properly before us because such a contention “may
not be raised on a CPL 440.20 motion” (People v Jean-Louis, 74 AD3d
1481, 1483, lv denied 15 NY3d 953).




Entered:   October 7, 2016                      Frances E. Cafarell
                                                Clerk of the Court
