Requires sentences for two or more crimes, when one crime is assault or homicide, to run consecutively

The measure also amends paragraph (e) of subdivision 1 of Section 70.30 of the Penal Law to provide that defendants who receive consecutive sentences involving one or more class A felonies and/or violent felony offenses shall not receive the benefit of the Penal Law's sentence merger provision. This provision requires that state prison terms, which are designated by sentencing courts to run consecutively, must automatically "merge down" so that they do not exceed a statutorily predetermined maximum total of years, even though the total number of years imposed by the court is greater.

Presently, only class A felony convictions are not subject to this sentence merger requirement. This bill will increase the scope of that exclusion so that multiple sentences for one or more class A felonies and/or one or more violent felonies (violent felonies include forcible rape, forcible sodomy, armed robbery and assault in the first degree), will not be automatically reduced by the merger statute.

Justification

Two of the current provisions of the state's Penal Law operate, sometimes singularly and sometimes in combination, to frustrate the ability of a sentencing court to impose appropriate punishment on a convicted, violent offender. The first of these two laws is subdivision 2 of Section 70.25 of the Penal law. This statute currently provides that the multiple sentences imposed on offenders who have committed numerous crimes by means of a single act must run concurrently. This means that all of the sentences are served at the same time. In the other form of multiple sentencing, known as consecutive sentencing, the service of each sentence is completed before the service of the next sentence begins. The unfairness of this mandatory concurrent sentencing law can be seen in the following examples:

* A defendant, angry at having been evicted from a rooming house, sets fire to it. As a result of the fire, five persons residing in the home are killed. Since the five deaths were caused by setting a single fire, the sentences imposed for the killings must run concurrently, a fact decried by the sentencing judge.

* In order to obtain revenge on a former girlfriend, a defendant throws an incendiary device into the crowded social club where she is employed. Eighty-seven persons die in the resulting fire. Under current law, each of the twenty-five years to life sentences imposed for the eighty-seven resulting murder convictions must run concurrently, thus amounting to approximately three and a half months of imprisonment per murder victim.

* An offender sets off an incendiary device in a crowded subway car and although no one is killed, numerous persons are severely burned and many suffer permanent or protracted serious physical injury. No matter how many persons are injured or how serious the injuries, the sentences for the injury to each victim is required to run concurrently to all the other sentences imposed.

These examples are not based on hypothesis; rather, each is based on an actual case occurring in a different county of the state. In each instance, the sentence which may be imposed for the harm caused to all the victims is no greater than the sentence which can be imposed for the harm to one of those victims. Thus, the offender effectively receives no additional punishment for the additional victims harmed beyond the first. These unfair results are not limited to cases in which deaths or injuries are caused by a single fire or incendiary device. The use by a defendant of an automatic weapon which could fire repeated shots from one pull of the trigger, thereby causing multiple deaths or injuries would mandate the same unfair imposition of concurrent sentences for the resulting crimes.

This terrible unfairness is due to the fact that under the operation of existing law, an offender causing multiple deaths or injuries by one act is punished in proportion to the single unlawful act and not in proportion to the number of victims killed or injured as a result of that act. The net effect is that the offender is sentenced for the harm caused to one victim and receives no additional punishment for the harm to all the others, no matter how many. This unjust situation can only be remedied by requiring that the punishment in such cases be measured by the number of victims and the severity of their injuries.

We simply cannot afford to continue the current sentencing scheme in which one act equals one punishment no matter how many victims. The portion of the bill amending Penal Law Section 70.25 will remedy this situation by requiring that the separate sentences imposed for multiple injuries or deaths caused by one act run consecutively. This will allow a defendant to be punished for more than just the harm caused to one of his or her multiple victims. In this way, the bill will help ensure that the extent of a defendant's sentence will directly and appropriately relate to the amount of suffering he or she has caused to society.

If, however, the present inequities in the sentencing of violent offenders who harm multiple victims are to be fully addressed, a second portion of the problem must be dealt with. That aspect of the problem is contained in the sentence merger provisions of Penal Law Section 70.30 subdivision (1) (e). Under the present sentence merger statute, an adult defendant convicted of multiple, unrelated felonies and given consecutive indeterminate sentences can serve no more than an indeterminate sentence of twenty-five to fifty years. This limitation does not apply to those sentenced for one or more class A felonies such as murder. However, if no class A felony is involved, the defendant cannot serve more than the twenty-five to fifty years, no matter how violent, vicious or numerous the crimes involved and even if a court has provided that each sentence is to run consecutively. The twenty-five to fifty year limit applies only when a defendant is sentenced for at least three violent felonies. If no violent felonies and no class B felonies are involved, the sentencing cap is a lesser period of ten to twenty years. Even these limitations do not take into account additional reductions from the maximum sentence term for good behavior in prison. The injustice caused by the operation of the present sentencing merger law is no mere abstraction. It is compellingly illustrated by the following actual cases:

* A group of five armed defendants invaded a diner late at night and, at gunpoint, forced the seventy-six persons inside to disrobe and turn over their possessions. Two of the victims were shot, but not fatally. Various numbers of the seventy-six victims were forced to commit sexual acts on the defendants or each other. Some persons were raped repeatedly. The five defendants fled and were ultimately apprehended and convicted of over one hundred and fifty-five counts of robbery, rape, sodomy and weapons possession, as well as other felonies. The well over one-hundred-year sentence given each defendant was automatically reduced by previous versions of the sentence merger statute to a term of fifteen to thirty years although today that reduction would instead be to a term of twenty-five to fifty years (due to a 1983 amendment), even that higher amount is woefully inadequate to punish the brutal, wanton nature of such crimes.

* In another crime spree, a defendant who was a prior felony offender committed an armed robbery of a business and kidnapped and raped two female employees. The next day, in an adjoining county, the defendant again committed another robbery of a business and again raped two of its female employees. No class A felonies were involved in any of the numerous violent crimes committed by this defendant. Although the defendant received consecutive sentences totalling sixty-two and a half to one hundred and twenty-five years for his crimes in just one of the two counties, the total length of these sentences was automatically reduced, by operation of the sentence merger law, to a period of fifteen to thirty years. Presently, the reduction would be to a still inadequate term of twenty-five to fifty years. Not only did this undervalue the seriousness of the defendant's crimes; it made it totally impossible for him to serve any additional time for the crimes he had committed in the other county, no matter how numerous or how violent. The sentence merger statute in effect gave the defendant a "free ride" for these additional, multiple violent acts.

* A serial rapist terrorized portions of three counties in the southern part of the state. Numerous women were victimized by this defendant, who broke into their homes to commit his crimes. The defendant was ultimately caught and later convicted in all three jurisdictions of many counts of rape, burglary and, in one instance, attempted murder. The consecutive sentences imposed on the defendant in the three counties totalled to an indeterminate prison term of 447 to 894 years. Yet, because of the sentence merger law, the rapist's term of imprisonment was automatically reduced to a total term of twenty-five to fifty years, thereby leaving him effectively unpunished for most of his crimes.

The second portion of this bill will remedy these deficiencies by amending the sentence merger statute. As previously indicated, that statute currently does not cap the sentences of those convicted of one or more class A felonies such as murder. This bill will widen that exclusion so that the sentencing merger law will also not apply to violent felonies as defined in Penal Law Section 70.02. These violent felonies include forcible rape and sodomy, armed robbery and assault in the first degree. Consecutive sentences not involving class A and/or violent felonies will continue to be subject to the sentence merger law. The two existing sentencing limits addressed by this bill (Penal Law Section 70.25(2) and Penal Law Section 70.30 (1)(e)) are completely at odds with reasonable attempts to provide a sufficient scope of punishment for violent offenders who harm multiple victims. Furthermore, these restrictions are totally contrary to both the letter and the spirit of one of the basic purposes of the Penal Law, namely, "to differentiate on reasonable grounds between serious and minor offenses and to prescribe proportionate penalties therefore..." (Penal Law section 1.05). By lifting these two sentencing limits, the bill will permit the sentences served to be a far more accurate reflection of the intent of the sentencing court. Obviously, appellate review regarding the possibility of excessiveness of sentence will still be available and it is not changed by this measure. By permitting the punishment imposed to more appropriately fit the nature of the crimes committed, the bill adds an extra measure of deterrence and increases the ability of the criminal justice system to protect society from its most vicious and violent offenders.

Legislative history

2007-08 - S.3874 Referred to Codes 2005 - S.3098 Referred to Codes 2004 - S.472 Referred to Codes 2003 - S.472 Referred to Codes 2002 - S.2869 Referred to Codes 2001 - S.2869 Referred to Codes 2000 - S.857 Referred to Codes 1999 - S.857 Committed to Rules 1998 - S.5950 Passed Senate 61-0

Fiscal implications

None.

Effective date

This act would take effect on the first of November.