DECISION & ORDER The defendant’s pro se motion seeks an order, pursuant to CPL §440.20, setting aside his sentence on the ground that it was illegally imposed. The People oppose the motion. Upon review of the parties’ respective motion papers and the court file, the defendant’s motion is denied.BackgroundOn December 12, 2014, complainant Mario Montanez returned to his apartment in Kings County and observed the defendant therein. The complainant noticed that the defendant had moved some of his belongings, including two laptops and an iPad, into one of the complainant’s backpacks. When the complainant confronted the defendant, the defendant walked onto the fire escape, motioned to his waistband and informed the complainant that he was carrying a firearm. The defendant was still standing the fire escape when officers responded to the location. Upon searching the defendant, officers recovered a pair of the complainant’s headphones from his person, but did not recover a weapon.A grand jury subsequently charged the defendant, under Kings County Docket Number 10231/2014, with one count each of burglary in the second and third degrees, one count of petit larceny, one count of criminal possession of stolen property in the fifth degree, one count of menacing in the third degree, and one count of trespass. Due to his prior criminal convictions, the defendant was subject to adjudication as a persistent violent felony offender, pursuant to PL §70.08, which exposed him to a possible mandatory indeterminate sentence of sixteen years’ to life incarceration.1The parties subsequently negotiated a plea deal, pursuant to which the defendant would plead guilty to burglary in the third degree and criminal possession of stolen property in the third degree, in exchange for a sentence of a term of three-and-one-half to seven years’ incarceration for each offense, to be served consecutively.On April 13, 2016, the defendant executed a waiver of indictment, pursuant to which he agreed to be prosecuted by a Superior Court Information (SCI) charging him with the offense of criminal possession of stolen property in the third degree, under Kings County Superior Court Number 3213/2016. The defendant joined in the People’s application to consolidate the indictment with the SCI, and pleaded guilty to burglary in the third degree and criminal possession of stolen property in the third degree, in full satisfaction of both accusatory instruments. On April 25, 2016, the court imposed the promised sentence.Defendant’s Present MotionThe defendant now seeks relief pursuant to CPL §440.20, which authorizes a court to set aside a sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law. According to the defendant, the court’s sentence contravenes New York’s proscription against the imposition of more than one sentence of imprisonment “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 was also a material element of the other,” as codified by PL §70.25 (2). Conversely, the People aver that the defendant received a lawful sentence because the offenses to which the defendant pleaded guilty are comprised of different statutory elements and were committed through separate, successive acts.To ascertain whether consecutive sentences are permitted pursuant to PL §70.25 (2), “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 and citations omitted]). The fact that two crimes may share statutory elements will not preclude the court from imposing consecutive sentences if the People establish that the acts or omissions for which the defendant is charged constitute discrete acts (People v. Frazier, 16 NY3d 36, 41 [2010], quoting People v. Laureano, 87 NY2d 640, 643 [1996]). “Conversely, where the actus reus is a single inseparable act that violates more than one statute, a single punishment must be imposed” (Rodriguez at 244 [internal quotation omitted]). The onus is on the People to demonstrate “the legality of consecutive sentencing by ‘identifying the facts which support their view’ that the crimes were committed by separate acts” (id., quoting People v. Laureano, 87 NY2d 640, 644 [1996]).In the instant matter, the court imposed consecutive sentences upon the defendant’s convictions for burglary in the third degree and criminal possession of stolen property in the third degree. In light of the defendant’s pro se status, the court construes his motion liberally, and presumes that the defendant seeks to contest the legality of his sentence under both statutory prongs.As the People correctly aver, the actus reus component of each offense is distinguishable from that of the other. The requisite ‘act’ for burglary in the third degree is the defendant’s unlawful entry into a building (PL §140.20); for criminal possession of stolen property in the fifth degree, the physical act is possessing stolen property of a monetary value greater than $3,000 (PL §165.50). Therefore, the court was not required to impose concurrent sentences under the first prong of PL §70.25 (2).As for the second prong, the defendant claims that the two offenses are based upon a single, inseparable act, for which he may only be subjected to a single punishment, because “the possession of stolen property could not have occurred without the burglary having occurred first, [and] therefore, one crime is the element of the other crime.” The defendant’s analysis impermissibly makes “[r]eference 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 [which] is not the test for consecutive sentencing purposes” (People v. Brahney, 29 NY3d 10, 14 [2017], quoting People v. Day, 73 NY2d 208, 211 [1989]).“[T]he commission of one offense is a material element of a second…if, by comparative examination, the statutory definition of the second crime provides that the first crime is also a necessary component in the legislative classification and definitional sense” (id. [internal quotation omitted]). Possessing stolen property is not a necessary element of burglary in the third degree, nor is unlawfully entering a building a necessary element of criminal possession of stolen property in the third degree.Accordingly, the defendant’s motion to set aside his sentence is hereby denied.This constitutes the decision and order of the court.
