This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 26
The People &c.,
            Respondent,
        v.
Ryan P. Brahney,
            Appellant.




          Kathryn Friedman, for appellant.
          Christopher T. Valdina, for respondent.




STEIN, J.:
          On this appeal, we are asked to determine whether
consecutive sentences were authorized under Penal Law § 70.25 (2)
for defendant's burglary and intentional murder convictions.
Inasmuch as the People identified evidence in the record to
support their view that the crimes were committed through


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separate and distinct acts, consecutive sentences were
permissible.
                                 I.
            Defendant was charged in an indictment with numerous
crimes, including two counts of murder in the second degree and
two counts of burglary in the first degree, after he killed his
former girlfriend in her home by stabbing her with a butcher
knife.    At the ensuing nonjury trial, defendant stipulated in
writing that he "caused the death of" the victim "by stabbing her
with a knife," but proffered an affirmative defense of extreme
emotional disturbance.    Defendant's uncle testified that
defendant appeared at the uncle's home at approximately 1:00 a.m.
on the night of the murder.    Defendant was covered in blood,
asked that his mother be called to pick up his son, and stated
that he had stabbed and killed the victim.    The uncle called the
police.    At the station, defendant made statements to police that
he had killed the victim; he was subsequently recorded on a
telephone call with his mother, admitting that he went to the
victim's apartment, "dragged her down the stairs and murdered
her."
            Police responding to the victim's apartment determined
that defendant had gained entrance by smashing a window and
tearing a screen.    They observed signs of a struggle in the
upstairs master bedroom, as well as a small smear of blood on a
wall outside the bedroom, a smear of blood on a half wall at the


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top of the staircase landing, and a few drops of blood on the
floor upstairs and on the stairs.    Testing later revealed this to
be the victim's blood.   The victim was found downstairs, on the
floor of her living room, with a knife sticking out of her chest.
The photographs depicting her body and wounds corroborate the
police testimony at trial that there were large quantities of
blood in the living room, including next to the victim's body.
          The Chief Medical Examiner testified that he found 38
slash or stab wounds on the victim's body, all of which were
consistent with the murder weapon.     He explained that several of
the wounds, individually, could have been fatal -- specifically,
those that penetrated the chest cavity, caused lung collapse,
injured the heart, sliced a major vein in the neck and penetrated
the liver -- but did not identify a particular wound that clearly
caused death immediately.
          As relevant here, defendant was found guilty of
intentional murder, as well as two counts of burglary in the
first degree, based on (1) causing physical injury and (2) using
or threatening to use a dangerous instrument.    At sentencing, the
People argued that consecutive sentences were appropriate because
the evidence showed that defendant pulled the victim out of bed
and inflicted minor injuries on her while she was upstairs,
before dragging her down the stairs and inflicting mortal wounds
in the living room.   Defendant argued that consecutive sentences
were not permissible because the crimes were part of a continuing


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course of criminal conduct that was formulated, according to the
People, before he entered the victim's apartment.   The court,
upon resentencing, sentenced defendant to a term of imprisonment
of 54 years to life, with the concurrent sentences on the two
burglary convictions imposed consecutively to his sentence on the
intentional murder conviction.
           Upon defendant's appeals from the judgment of
conviction and resentence, the Appellate Division affirmed, with
two Justices dissenting (126 AD3d 1286 [4th Dept 2015]).   While
stating that "the actus reus elements of the burglary counts and
the murder count overlap under the facts presented here," the
court "nevertheless conclude[d] 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" (id. at 1289, quoting People v Laureano, 87 NY2d 640, 643
[1996]).   In contrast, the dissenting Justices concluded that
"the People failed to meet their burden of establishing that the
burglary and murder offenses were committed by separate and
distinct acts," based upon their view that "it is possible" that
the wound or wounds that the victim sustained while upstairs may
have ultimately caused her death (id. at 1291-1292).   One of the
dissenting Justices granted defendant leave to appeal.
                                  II.
           Penal Law § 70.25 authorizes a trial judge to direct
that sentences run either concurrently or consecutively except


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that
          "[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, the sentences . . . must run
          concurrently"
(Penal Law § 70.25 [2]).   In other words, under section 70.25
(2), "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" (Laureano, 87 NY2d at 643).
          In determining whether consecutive sentences are
authorized, "a court must first look to the statutory definitions
of the crimes at issue to discern whether the actus reus elements
overlap" (People v Rodriguez, 25 NY3d 238, 244 [2015] [internal
quotation marks and citation omitted]; see People v Couser, 28
NY3d 368, 375 [2016]).   "Reference to the fact-specific
circumstances and proof of a crime to determine whether, under
the second statutory prong, one offense is a material element of
a second is not the test for consecutive sentencing purposes"
(People v Day, 73 NY2d 208, 211 [1989]).   Rather, "the commission
of one offense is a material element of a second for restrictive
sentencing purposes if, by comparative examination, the statutory
definition of the second crime provides that the first crime is
also a necessary component in the legislative and definitional
sense" (id.).

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          Moreover, even "[i]f the statutory elements do overlap
under either prong of the statute, 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; accord People v McKnight, 16
NY3d 43, 48 [2010]).   That rule applies even though the separate
and distinct acts "are part of a single transaction" (Couser, 28
NY3d at 376 [internal quotation marks and citation omitted]),
because "[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" (McKnight, 16 NY3d at 49 [internal quotation marks and
citations omitted]).   In short, "consecutive sentences may be
imposed when 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" (People v Ramirez, 89 NY2d 444,
451 [1996]); "[c]onversely, where the actus reus is a single
inseparable act that violates more than one statute, [a] single
punishment must be imposed" (Rodriguez, 25 NY3d at 244 [internal
quotation marks and citation omitted]).
          This Court has repeatedly explained that "[t]he People
have the burden of establishing the legality of consecutive
sentences" (People v Rosas, 8 NY3d 493, 496 [2007]).   In
Laureano, the Court stated that the People may meet their burden
of demonstrating that the facts underlying the crimes are


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separate and distinct "by identifying the facts which support
their view . . . from the . . . record" (Laureano, 87 NY2d at
644; accord Rodriguez, 25 NY3d at 244).      In contrast, where "the
People are unable to point to any testimony or evidence which
would support the view that the offenses of which defendant
stands convicted involved disparate or separate acts, the
sentences must run concurrently" (People v Underwood, 52 NY2d
882, 883 [1981]).
                                 III.
           As relevant to the particular crimes at issue here,
"[a] person is guilty of murder in the second degree when . . .
[w]ith intent to cause the death of another person, he causes the
death of such person or of a third person" (Penal Law § 125.25
[1]).   As defendant argues, the actus reus of intentional murder
is causing the death of a person.       A person commits burglary in
the first degree
           "when he knowingly enters or remains
           unlawfully in a dwelling with intent to
           commit a crime therein, and when, in
           effecting entry or while in the dwelling or
           in immediate flight therefrom, he or another
           participant in the crime: . . . [c]auses
           physical injury to any person who is not a
           participant in the crime; or . . .[u]ses or
           threatens the immediate use of a dangerous
           instrument"
(Penal Law § 140.30 [2], [3]).    The actus reus element of the
burglary charge predicated upon the use or threatened use of a
dangerous instrument does not, by definition, overlap with the
actus reus of murder in the second degree.      In contrast,

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defendant correctly argues that there is an overlap in the actus
reus elements of murder in the second degree and the burglary
count in which the aggravating factor was causing physical
injury.    "By definition, the act of causing death is subsumed
within the element causing . . . physical injury" (Laureano, 87
NY2d at 644; see Penal Law § 10 [9], [10]) and, thus, the act
constituting murder here was a material element of that burglary
count.    The People therefore concede that, with respect to the
latter burglary charge, they were required to identify facts
establishing that defendant committed this offense and murder
through separate and distinct acts.     Because "the People
offer[ed] evidence of the existence of . . . separate and
distinct act[s]" with respect to that count of burglary in the
first degree -- indeed, with respect to both counts -- "the trial
court ha[d] discretion to order consecutive sentences" (Couser,
28 NY3d at 377).
            Specifically, the evidence of a small amount of blood
upstairs, as compared with the large amount downstairs, supports
the determination of the courts below that defendant used a
dangerous instrument to cause physical injury to the victim
upstairs, and then -- as he admitted -- "dragged her down the
stairs and murdered her" in a separate and distinct act (see
People v Brown, 80 NY2d 361, 365 [1992]).     The scenario posited
by defendant would have required that the victim barely bled in
the location where she sustained a stab wound that sliced or


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punctured one of her internal organs, but that she bled profusely
in a different location.      Under these circumstances, we cannot
say as a matter of law that the conduct resulting in defendant's
conviction of intentional murder and the conduct underlying the
elements of the burglary convictions was a single act for
consecutive sentencing purposes (see People v Salcedo, 92 NY2d
1019, 1022 [1998]).
            Defendant's argument that he received the ineffective
assistance of counsel has been considered and found to be lacking
in merit.   His remaining claim was not preserved for our review.
Accordingly, the orders of the Appellate Division should be
affirmed.
*   *   *    *   *    *   *     *    *      *   *   *   *   *   *   *   *
Orders affirmed. Opinion by Judge Stein. Chief Judge DiFiore
and Judges Rivera, Abdus-Salaam, Fahey, Garcia and Wilson concur.

Decided March 30, 2017




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