# People v. Battles > New York Court of Appeals · December 14, 2010 · 16 N.Y.3d 54 URL: https://www.frixlaw.com/law-library/cases/9779861 ## Case - **Full name:** The People of the State of New York, Respondent, v. Calvin Battles, Appellant - **Court:** New York Court of Appeals - **Decided:** December 14, 2010 - **Citations:** 16 N.Y.3d 54; 917 N.Y.S.2d 601; 942 N.E.2d 1026 - **Precedential status:** Published - **Opinion:** Dissent by Jones - **Judges:** Pigott, Lippman, Jones - **Cited by:** 60 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9779861 ## Opinion text Jones, J. (dissenting in part). Because I believe that defendant’s sentences as to all four victims should be modified to run concurrently, I respectfully dissent. In holding that consecutive sentences were authorized with respect to three of the victims “[bjecause defendant engaged in conduct which created a grave risk of death or serious physical injury to each of those victims! ] by separate and distinct acts of dousing them with gasoline” (majority op at 59), the majority focused on a small portion of the trial court’s jury instruction applicable only to count 2 on the verdict sheet (i.e., the depraved indifference murder count). According to the majority, the trial court instructed the jurors that they could find defendant acted with depraved indifference to human life even if they did not find that defendant ignited the fire (see id,.). Based on this instruction, the majority posited that “[defendant's acts of soaking each victim with gasoline in a room where other people were present, and where one of them . . . was smoking a lit cigarette, were so inherently dangerous to each victim that defendant was found guilty of depraved indifference murder and depraved indifference assault based on those acts alone” (id. [emphasis added]). I disagree. In my view, the majority’s holding is contrary to our precedent interpreting the “act or omission” under Penal Law § 70.25 (2) as the actus reus of the particular criminal offense (see People v Laureano, 87 NY2d 640, 643 [1996]; People v Rosas, 8 NY3d 493, 496, 497 [2007]). 1 Specifically, the majority incorrectly upheld the imposition of consecutive sentences for depraved indifference murder and depraved indifference assault based on what amounts to separate acts of depraved indifference reckless endangerment. Penal Law § 70.25 (2) provides that concurrent sentences must be imposed when two or more offenses are committed *69 “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.” In People v Ramirez ( 89 NY2d 444 [1996]), this Court explained that “[s]ection 70.25 (2) does not prohibit convictions of multiple offenses containing overlapping elements. Rather, the statute prohibits double punishment for an act or omission which violates more than one section of the law and is accordingly punishable in different ways” ( 89 NY2d at 451 n 5). To determine whether concurrent sentences are required, this Court instructed that “[a] sentencing court must first examine the statutory definitions of the crimes for which defendant has been convicted. Because both prongs of Penal Law § 70.25 (2) refer to the ‘act or omission,’ that is, the ‘actus reus’ that constitutes the offense (see, Penal Law § 15.00 [1] [bodily movement]; Penal Law § 15.00 [3] [failure to act]), 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). If it is neither, then the People have satisfied their obligation of showing that concurrent sentences are not required. If 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 [case citations omitted]). That is, when a defendant is convicted of multiple offenses, the sentencing court, in addition to reviewing the Penal Law provisions under which defendant was convicted, must review the relevant evidence adduced at trial and the trial court’s jury charge to determine whether any of the crimes for which defendant was convicted were single act offenses (for concurrent sentencing purposes). Analysis must begin with the language of the depraved indifference murder and assault statutes. Under Penal Law § 125.25 (2), “[a] person is guilty of murder in the second degree when . . . [u]nder circumstances evincing a depraved indifference to human life, he recklessly *70 engages in conduct which creates a grave risk of death to another person, and thereby [i.e., as a result of that conduct] causes the death of another person.” The statutory definition of depraved indifference (first-degree) assault differs from depraved in difference murder only in the result caused by defendant’s conduct, i.e., “serious physical injury to another person” (Penal Law § 120.10 [3]). Examining these statutory definitions, the entire actus reus of depraved indifference murder is that defendant recklessly engaged in conduct which created a grave risk of death to Ronald Davis, and as a result of that conduct caused the death of Ronald Davis-, while the entire actus reus of depraved indifference assault is that defendant recklessly engaged in conduct which created a grave risk of death to Elliott, Wheeler and Gregory Davis, and as a result of that conduct caused serious physical injury to those three individuals. Although a consecutive sentence may be authorized “if the Legislature has seen fit to provide that up to a particular point the acts of the defendant constitute one crime and that the acts of the defendant, committed thereafter, constitute a second crime and that each series of acts constitute] a separate crime” (Rosas, 8 NY3d at 498 [citation and internal quotation marks omitted]), such a sentence is not permissible under these facts. Here, the same “single act” (i.e., the same actus reus) of causing the fire is the basis for defendant’s convictions of depraved indifference murder and depraved indifference assault. In People v Rosas, this Court held that the sentences imposed on defendant, who was convicted of two counts of first-degree murder under Penal Law § 125.27 (1) (a) (vii) for causing the deaths of two individuals during the same criminal transaction, must be served concurrently. Rosas provides support for the proposition that the actus reus for a depraved indifference of-. fense is the act in a series of risk-creating acts that is both necessary and sufficient to cause the result for which defendant will be held criminally liable (see Rosas, 8 NY3d at 499 [Regarding the statutory definition of “act” in Penal Law § 15.00 (1) (“a bodily movement”), the Rosas majority noted that the purpose of the statutory definition “draws a line between a prohibited ‘act’—‘a bodily movement,’ or actus reus—and a ‘(c)ulpable mental state’ (Penal Law § 15.00 [6])—a state of mind, or mens rea. The statute could not have been designed to require courts to distinguish between one and several bodily *71 movements, because the distinction will be difficult or impossible in many cases as the dissent recognizes”]; Rosas, 8 NY3d at 503 n 4 [The dissent noted, “for sentencing purposes, we need concern ourselves only with the particular act(s) that fulfill the act element(s) of the offense of which a defendant is charged. For example, to accomplish a second-degree intentional murder, a single act offense, a defendant necessarily engages in many bodily acts—but the only one the People must prove to support the conviction is the act that causes the victim’s death”]). Here, causing the fire was the act defendant needed to perform in order to cause the criminal results of which he was convicted—the death of Ronald Davis and the serious burn injuries to Elliott, Wheeler and Gregory Davis. Accordingly, the only act the People had to prove to support the depraved indifference convictions was the act that caused Ronald Davis’ death and the other victims’ serious physical injuries—that is, defendant’s single act of igniting the fire. The acts that preceded defendant’s ignition of the fire—pouring, splashing, or throwing gasoline on the victims and around the room—while essential components of the risk-creating conduct, cannot be the basis of the sentencing determination under section 70.25 (2) because these acts were insufficient to complete the crimes of which he was convicted. In “actus reus” terms, these acts amount to conduct which created a grave risk of death; conduct which the People concede supports a conviction for depraved indifference reckless endangerment. Further, while the death and serious physical injuries sustained by the victims logically could have occurred in the absence of defendant’s separate acts of pouring, splashing, or throwing gasoline, they could not have occurred without defendant’s single act of causing the fire. The fact that defendant was acquitted of two felony murder counts based on the jury’s finding that the underlying felony, arson in the second degree, 2 was not established by the People does not require a different conclusion. For purposes of determining whether concurrent or consecutive sentences were warranted for defendant’s convictions of the instant depraved *72 indifference offenses, his single act of causing the fire need not have been an intentional act. The jury’s finding that defendant was guilty of the depraved indifference counts was not dependent on whether defendant intentionally set the fire. Given the evidence that the fire ignited directly after defendant, with lighter in hand, pushed Elliott who fell back into the gasoline-soaked living room, it is reasonable to conclude the jury found that defendant recklessly caused the fire through an act of depraved indifference. 3 The majority and People contend that consecutive sentencing was permissible because the jury, as charged, could have found that defendant’s separate acts of dousing the victims with gasoline constituted the relevant “acts” for the depraved indifference crimes, regardless of whether the jury also found that defendant, through a single act, caused the fire. However, in order to justify consecutive sentencing based on separate and distinct acts, the People must identify “the facts which support their view” (see Laureano, 87 NY2d at 644 [citation omitted]). In establishing this claim, the People “may offer facts from the trial record” (id. [citation omitted]). Here, the People have not identified any such supporting facts. To the contrary, upon finding that defendant poured, splashed, or threw gasoline on Ronald Davis, Elliott, Wheeler and Gregory Davis, the jury also had to find that defendant’s “act” caused Ronald Davis’ burn-related death, and the serious burn injuries sustained by Elliott, Wheeler and Gregory Davis. Defendant’s act which caused the fire—the pushing of Elliott to the floor—was the only causative “act” adduced at trial. Further, the majority’s and People’s reliance on the stated jury instruction is problematic. First, this jury instruction should have been objected to by defendant’s trial counsel because it allowed the jury to find defendant guilty of depraved indifference murder on proof of an act (i.e., the pouring or splashing of a flammable liquid) that only supports the crime of depraved indifference reckless endangerment. Second, this instruction, which only applied to the depraved indifference murder count, was not given for (and is therefore inapplicable to) the depraved indifference assault counts. In addition, the jury was specifically instructed that in order to convict defendant of a charged offense, it must find that the *73 People proved each element of the particular criminal offense beyond a reasonable doubt. For example, the jury was instructed to find defendant not guilty of depraved indifference assault if the People failed to prove beyond a reasonable doubt that the defendant caused serious physical injury to Gregory Davis, Elliott and Wheeler. As stated, the only causative “act” adduced at trial was defendant’s single act of causing the fire. Thus, the trial court’s charge, when read as a whole, makes clear that defendant’s single act of causing the fire was not insignificant for purposes of holding defendant criminally liable (at least for the depraved indifference assault counts). Based on the foregoing, the argument put forth by the majority and People that each of the depraved indifference assault counts was complete as soon as defendant doused the respective victims with gas necessarily fails. Under the majority’s theory, sentencing judges would be allowed to select and designate specific preliminary acts as the operative actus reus in depraved indifference crimes so as to thwart the requirement of concurrent sentencing for a “single act” and permit consecutive sentencing. Not only would this be contrary to this Court’s long-settled interpretation of section 70.25 (2) and violative of the legislative intent of the statute, it would create uncertainty in the law because application of section 70.25 (2) would depend on the depravity of defendant in committing certain preliminary acts. Accordingly, the People failed to meet their burden of establishing the legality of the consecutive sentences imposed on defendant because defendant’s “single act” of causing the fire was the basis for his convictions of depraved indifference murder and depraved indifference assault. Penal Law § 70.25 (2) prohibits consecutive punishment for such a single act. Judges Ciparick, Graffeo, Read and Smith concur with Judge Pigott; Chief Judge Lippman dissents in part in a separate opinion; Judge Jones dissents in part in another opinion. Order modified, etc. . Actus reus (Latin for “guilty act”) is defined as “[t]he wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea to establish criminal liability” (Black’s Law Dictionary 41 [9th ed 2009]). . Penal Law § 150.15 provides: “A person is guilty of arson in the second degree when he intentionally damages a building or motor vehicle by starting a fire, and when (a) another person who is not a participant in the crime is present in such building or motor vehicle at the time, and (b) the defendant knows that fact or the circumstances are such as to render the presence of such a person therein a reasonable possibility.” . As we noted in People v Feingold ( 7 NY3d 288, 294 [2006]), “depraved indifference to human life[, like intent,] is a culpable mental state.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9779861. Public record. Not legal advice.