The opinion
Chief Judge Lippman (dissenting in part).
In this case, the actus reus of the attempted murder encompasses the entire actus reus of the murder. Since the two offenses were committed *51 through the same act within the meaning of Penal Law § 70.25 (2), concurrent sentences are required. Therefore, we respectfully dissent from the portion of the order affirming the imposition of consecutive sentences.
Defendant and codefendant each fired five shots in an attempt to murder Maurice Lingard. William Smith, an innocent bystander, was killed in the process and his murder was prosecuted on a theory of transferred intent—that bullets intended for Lingard actually struck and killed Smith. Under these circumstances, the two shots that caused Smith’s death were inseparable from the 10 shots constituting the attempt on Lingard’s life.
We do not minimize the seriousness of defendant’s conduct, which resulted in the death of Smith. However, the doctrine of transferred intent has effectively served to allow the State to impose a term of 25 years to life on defendant. We are here confronted with the different issue of the legality of a sentence consecutive to the life term.
Under the Penal Law, concurrent sentences are mandatory when two offenses are committed through a single act, or through an act which constitutes one offense and is also a material element of the second (see Penal Law § 70.25 [2]). The Penal Law further defines an “act” as “a bodily movement” (Penal Law § 15.00 [1]), which we have interpreted to mean the actus reus of the offense (see People v Laureano, 87 NY2d 640, 643 [1996]). As we have held, a single “act” within the meaning of section 70.25 (2) can be perpetrated by multiple bodily movements (see People v Rosas, 8 NY3d 493, 499 [2007]).
Where the statutory elements of the offenses overlap, consecutive sentences can still be imposed if the “offenses are committed through separate and distinct acts, though they are part of a single transaction” (People v Ramirez, 89 NY2d 444, 451 [1996]; see also People v Frazier, 16 NY3d 36 [2010] [decided today]). In other words, “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” (Ramirez, 89 NY2d at 451 ). The burden of establishing that consecutive sentences are available is on the People (see People v Taveras, 12 NY3d 21, 25 [2009]).
There is more than mere overlap between these two offenses, as depicted by the majority; there is an element of identity. *52 Even though several shots were fired, defendant was charged with one count of attempted murder—not separate attempts for each individual shot. Rather, all 10 shots were treated as a single, unified attempt. And it is plain that they were correctly so treated. The majority suggests that this was merely a decision made by the People “for purposes of charging” (majority op at 50), but the implication that the People could have chosen otherwise—that defendant could have been charged with and convicted of 10 attempts, and given 10 consecutive sentences as a result—seems self-evidently wrong. There was only one attempt, and the actus reus of that attempt consisted of every shot fired in the effort to take Lingard’s life, including the two shots that struck Smith. Stated differently, no shot was fired that was not part of the attempted murder of Lingard.
To reach the conclusion that consecutive sentences are permissible here, the majority finds that the actus reus of the murder is separable from the acts, or bodily movements, that constituted the attempted murder. To that end, the majority asserts that the two shots that killed Smith “were the result of ‘separate and distinct acts’ of pulling a trigger to discharge a firearm” (majority op at 49, quoting Laureano, 87 NY2d at 643 ). But the majority’s separation of the shots—or the trigger-pulling acts—into groups of eight and two is arbitrary. The majority analyzes the case as if defendant had been convicted of the assault, rather than the attempted murder, of Lingard. Were that the case, it might be true that the actus reus of the assault against Lingard could be limited to the specific shots that hit the victim (see People v Brathwaite, 63 NY2d 839, 843 [1984]). Since assault is a crime defined by a result, there would be a basis for treating the acts that produced that result as a separate actus reus. But the crime of attempt is not defined by a result, and in such a case a series of bodily movements, accompanied by a single continuous intent, is one actus reus only. With regard to the actual convictions of murder and attempted murder, there were not separate actus rei, even though each offense consisted of several distinct bodily movements. Further, there is no indication that the attempt on Lingard’s life came to an end before Smith was shot. Thus, the People have not met their burden of establishing that the convictions were based on separate and distinct acts (see Ramirez, 89 NY2d at 453 ).
Our case law on possessory offenses is instructive. In People v Salcedo ( 92 NY2d 1019, 1022 [1998]), we determined that the crime of criminal possession of a weapon in the second degree was “complete” once the defendant possessed a loaded gun *53 intending to use it unlawfully against another. We observed that a “ ‘subsequently formed intent while possessing the weapon result[s] in the commission of a second offense’ ” (Salcedo, 92 NY2d at 1022 , quoting People v Okafore, 72 NY2d 81, 83 [1988]). Similarly, we explained in Okafore that second-degree weapon possession “spans only the period during which defendant possesses the weapon and harbors the unlawful intent to use it against another” and, “[i]f either element lapses, the crime is complete” ( 72 NY2d at 87 ). Under the circumstances presented here, however, the actus reus of the attempted murder was continuous in nature, such that it can only be concluded that the offense was complete when the last shot was fired. Defendant intended to kill only one individual and the acts he committed in furtherance of that intent were all committed for the purpose of attaining that end. Although two of the bullets struck and killed Smith, that does not alter the fact that they were fired as part of an attempt to kill Lingard.
Finally, despite the similarities this case bears to People v Battles ( 16 NY3d 54 [2010] [decided today]), the majority here reaches a different result. In Battles , we found a concurrent sentence appropriate where one of the victims was sprayed with gasoline while the others were being doused individually. We held that “the risk-creating conduct [the actus reus of depraved indifference assault] . . . was the same act as that of the others and running his sentence concurrently is required” (16 NY3d at 59). Here, the shots that hit Smith were part of the attempted murder of Lingard, and concurrent sentences must also be imposed. The disparate result reached by the majority here can only cause analytic confusion amongst bench and bar.
Jones, J. (dissenting in part). I agree with Chief Judge Lippman that the two offenses were committed through the same act and that concurrent sentences must be imposed. I do not join Chief Judge Lippman’s discussion of People v Battles ( 16 NY3d 54 [2010] [decided today]).
Judges Ciparick, Graffeo and Pigott concur with Judge Read; Chief Judge Lippman dissents in part in a separate opinion in which Judge Smith concurs; Judge Jones dissents in part in another opinion.
Order affirmed.