author: Read, J. Chief Judge Lippman (dissenting in part).

text:
    [942 NE2d 1019, 917 NYS2d 594]
    The People of the State of New York, Respondent, v Ulysess McKnight, Appellant.
    Argued November 15, 2010;
    decided December 14, 2010

      POINTS OF COUNSEL

      Legal Aid Society, Criminal Appeals Bureau, New York City (Allen Fallek and Steven Banks of counsel), for appellant.
    I. Counsel’s failure to object to the prosecutor’s having disclosed in his opening the damaging expected testimony of two witnesses the prosecutor admittedly knew were unavailable, among other incomprehensible omissions, deprived defendant of his constitutional right to the effective assistance of counsel. (People v Baldi, 54 NY2d 137; People v Benevento, 91 NY2d 708; People v Stultz, 2 NY3d 277; Strickland v Washington, 466 US 668; People v Turner, 5 NY3d 476; Rosario v Ercole, 601 F3d 118; People v Droz, 39 NY2d 457; Bruton v United States, 391 US 123; People v De Tore, 34 NY2d 199; People v Cruz, 100 AD2d 882.) II. The sentences for the attempted murder and the simultaneously committed transferred intent murder had to run concurrently where the shots that constituted the attempt to kill one victim included the shots that killed the other victim and where the “separate and distinct acts” rationale for the imposition of consecutive sentences was inapplicable. (People v Laureano, 87 NY2d 640; People v Parks, 95 NY2d 811; People v Rosas, 8 NY3d 493; United States v Pomranz, 43 F3d 156; People v Campbell, 72 NY2d 602; People v Naradzay, 11 NY3d 460; People v Dlugash, 41 NY2d 725; People v Ribowsky, 77 NY2d 284; People v Faulkner, 36 AD3d 951; People v Parton, 26 AD3d 868.)

      Charles J. Hynes, District Attorney, Brooklyn (Keith Dolan and Leonard Joblove of counsel), for respondent.
    I. Defendant received effective assistance of counsel. (Strickland v

      Washington, 466 US 668; People v Baldi, 54 NY2d 137; Bierenbaum v Graham, 607 F3d 36; Williams v Taylor, 529 US 362; People v Turner, 5 NY3d 476; People v Baker, 14 NY3d 266; People v Caban, 5 NY3d 143; Greiner v Wells, 417 F3d 305, cert denied sub nom. Wells v Ercole, 546 US 1184; People v Henry, 95 NY2d 563; Rosario v Ercole, 601 F3d 118.) II. The imposition of consecutive sentences was lawful because separate and distinct acts underlay each of the two crimes, and the acts constituting each crime were not material elements of the other crime. (People v Laureano, 87 NY2d 640; People v Azaz, 10 NY3d 873; People v Brown, 80 NY2d 361; People v Di Lapo, 14 NY2d 170; People v Ramirez, 89 NY2d 444; People v Rosas, 8 NY3d 493; People v Day, 73 NY2d 208; People v Brathwaite, 63 NY2d 839; People v Bonilla, 57 AD3d 400; People v Arroyo, 93 NY2d 990.)
   OPINION OF THE COURT

Read, J.

On the evening of Friday, September 16, 2005, at the end of his workweek, William Smith played cards with Eric Lamotte, his friend of 15 years, and other friends and neighbors until the early morning hours of September 17, 2005. The card game took place out-of-doors, near the middle of Gates Avenue between Throop and Tompkins Avenues in Brooklyn, where Smith resided with his mother in a second-floor apartment. Lamotte was staying with the Smiths at the time. At about 4:30 a.m., a half hour or so after Smith and Lamotte broke away from the card game, they were standing in front of the building where Smith lived when an acquaintance, Maurice Lingard, joined them. Seeing two men round the corner and advance on the three of them with guns in hand, Lamotte urged Smith, “Let’s move, let’s go upstairs.”

The two gunmen—Curtis Brown and defendant Ulysess McKnight—fired what the police later determined to be a total of five 9 millimeter and five .45 caliber rounds in the direction of Lingard, the object of their rage. Lamotte fled upstairs to the roof of the building and escaped injury; Lingard, shot three times, followed close behind Lamotte and survived; but Smith, struck in the chest and left calf by bullets that lodged in his body, collapsed in the street and died in the hospital a few hours later. Police officers arrived within minutes and spotted Brown and McKnight leaving the area. After a short pursuit, Brown was caught, while McKnight was not apprehended for several months. Neither of the guns used in the shooting was ever recovered.

McKnight was indicted and tried for various crimes as a result of this incident. A jury subsequently found him guilty of murder and attempted murder in the second degree (Penal Law § 125.25 [1]; § 110.00), based on allegations that, acting in concert with Brown, he intended and engaged in conduct to cause Lingard’s death, and he caused Smith’s death. Supreme Court sentenced McKnight to 25 years to life for the murder, and 25 years to life for the attempted murder, subsequently reduced to 20 years plus five years of postrelease supervision; and ordered the sentences to run consecutively for an aggregate prison term of 45 years to life.

McKnight appealed, protesting that Penal Law § 70.25 (2) mandated concurrent sentences for his convictions for attempted murder and murder. The Appellate Division rejected this claim without discussion (72 AD3d 846, 847 [2d Dept 2010]), citing People v Bonilla (57 AD3d 400 [1st Dept 2008, Lippman, PJ., on the panel]) and People v Brathwaite (63 NY2d 839 [1984] [although defendant’s two felony-murder convictions arose from a single transaction, an armed robbery, the separate acts of shooting each victim constituted the offenses and neither act was a material element of the other]).

In Bonilla, the defendant fired at least five shots during a neighborhood picnic on Labor Day in a New York City park, killing a 10-year-old girl standing near the intended victim, who survived. The defendant was convicted of both murder and attempted murder in the second degree, and the trial judge sentenced him to consecutive terms of 25 years to life imprisonment and 25 years, respectively, for an aggregate prison term of 50 years to life. The defendant—like McKnight—argued that the shot that caused the death was part of a multiple-shot actus reus underlying attempted murder and, as a result, he was not eligible to be sentenced consecutively for attempted murder and transferred-intent murder.

The Appellate Division disagreed on the ground that the shot that killed the child and the shots that wounded the intended victim were “separate and distinct acts” even though “defendant’s intent with respect to each act was to kill the surviving victim” (id. at 401). The court added that “[n]othing in the [trial judge’s] instructions on transferred intent required concurrent sentences” (id. at 401-402). The Appellate Division concluded likewise in this case. A Judge of this Court granted McKnight leave to appeal (15 NY3d 753 [2010]), and we now affirm.

Section 70.25 of the Penal Law sets out the rules governing when a judge may or must impose a sentence of imprisonment concurrently or consecutively to another sentence imposed at the same time. As a general rule, a judge is authorized to direct that multiple sentences “shall run either concurrently or consecutively with respect to each other” (Penal Law § 70.25 [1] ), except 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]).

“Thus, 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” (People v Laureano, 87 NY2d 640, 643 [1996]).

In deciding whether section 70.25 (2) mandates concurrent sentences, “the sentencing court must first examine the statutory definitions of the crimes for which defendant has been convicted” (id.). Based on the statutory definitions, the judge must then focus on the “act or omission”—i.e., the actus reus— that makes up each crime. The Penal Law defines an “act” as a “bodily movement” (Penal Law § 15.00 [1]), which we have interpreted to mean the actus reus or “wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea to establish criminal liability” (People v Rosas, 8 NY3d 493, 496 n 2 [2007] [citation omitted]; see also Laureano, 87 NY2d at 643).

If the act or omission is the same for both offenses (under the first prong of section 70.25 [2]), or if the act or omission that constitutes one offense is a material element of another offense (under the second prong of section 70.25 [2]), then consecutive sentences may not be imposed. Conversely, a judge possesses discretionary consecutive sentencing authority if neither circumstance exists. And even “[i]f the statutory elements do overlap under either prong of [section 70.25 (2)], 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 [emphasis added]; see also People v Azaz, 10 NY3d 873, 875 [2008] [“ ‘(T)rial courts retain consecutive sentence discretion when separate offenses are committed through separate acts, though they are part of a single transaction’ ” (quoting People v Brown, 80 NY2d 361, 364 [1992])]; People v Ramirez, 89 NY2d 444, 451 [1996] [“(C)onsecutive 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”]).

As relevant 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]). A person is guilty of attempted murder in the second degree when “with intent to commit” that crime “he engages in conduct which tends to effect the commission of such crime” (Penal Law §§ 110.00, 125.25 [1]). The actus reus of the murder of Smith was the firing of the two shots that “cause[d] the death of. . . a third person [i.e., Smith]”; and the actus reus of the attempted murder of Lingard was the firing of the eight other shots, which either hit no one or hit Lingard and “tend[ed] to effect” his death. All 10 shots were discharged with the intent to cause Lingard’s death, but “ ‘[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’ ” (People v Frazier, 16 NY3d 36, 41 [2010] [decided today], quoting People v Day, 73 NY2d 208, 212 [1989]). Thus, the actus reus of Smith’s murder is not the same as the actus reus underlying Lingard’s attempted murder under the first prong; and, under the second prong, the actus reus of Smith’s murder is not a material element of the actus reus of Lingard’s attempted murder because more than the two shots that struck Smith were fired at Lingard. If it were otherwise—if the two shots that hit Smith were the only shots fired at Lingard—we would agree that concurrent sentencing was mandated (see e.g. People v Battles, 16 NY3d 54, 59 [2010] [decided today] [consecutive terms of imprisonment were permissible for crimes committed against three victims who were individually doused with gasoline by defendant, but sentence imposed with respect to fourth victim, who was sprayed as a result of dousing of others, must run concurrently]).

McKnight argues that “the actus reus of each offense was the same [because] ... by relying on the transferred intent theory, the People implicitly conceded that all [10] shots were fired with the intent to kill Lingard.” Further, “based on the court’s charge, the prosecutor’s summation, and the absence of other evidence of [McKnight’s] intent, the jury likely concluded that the attempt was founded on all the fired shots,” citing People v Parks (95 NY2d 811, 814-815 [2000]). Thus, he reasons, “[t]he shots that killed Smith . . . were part of the actus reus of the attempt.” But even assuming that McKnight is correct and the actus rei for the two crimes overlapped, the People clearly established through the testimony of the ballistics expert and the medical examiner that two shots struck and killed Smith. These shots were the result of “separate and distinct acts” of pulling a trigger to discharge a firearm (see Laureano, 87 NY2d at 643). There is no authority to support the notion that where an actus reus consists of repetitive discrete acts, such as successive shots, that these acts somehow merge such that they lose their individual character where the same criminal intent (here, the intent to kill Lingard) “inspir[es] the whole transaction” (see Frazier, 16 NY3d at 41).

And this is not a case like Parks, which stands for the proposition that when more than one felony could be the predicate of a felony murder conviction, the jury’s verdict must establish which felony, in fact, serves as the predicate because otherwise it would be “impossible to tell which [felony] is a separate and distinct act from the felony murder” so as to justify consecutive sentencing (95 NY2d at 815). There is no question here that the jury convicted McKnight of murder because of the two shots that hit Smith. Further, this case is also distinguishable from Rosas, where the statute itself defined the actus reus for the crime to encompass the death of two people.

Finally, the dissent likens the circumstances here to our case law on possessory offenses (dissenting op at 52-53). But possession with criminal intent is complete once the defendant has dominion and control of a weapon; there are no more acts he can take to advance that offense. Attempt, at least on these facts, is a continuing series of bodily movements or acts: each individual shot was sufficient in and of itself to constitute the attempted murder of Lingard, and defendant could (and did) take more and more shots to carry out that crime. Further, the dissent complains that “[e]ven 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” (dissenting op at 52-53). But section 70.25 deals with sentencing, not charging. The trial judge’s sentencing authority is not constrained by the People’s decision to aggregate bodily movements for purposes of charging.

Essentially, the dissent would have us create a special rule of sentencing to govern attempt, or at least every case where an attempted murder carried out by multiple acts results in the death of someone other than the intended victim. The First Department in Bonilla and the Second Department in this case declined entreaties to place such a gloss on the statute. We likewise see no reason to interpret section 70.25 (2) to limit the trial judge’s sentencing discretion in this fashion.

We have considered defendant’s remaining contentions and consider them to be without merit. Accordingly, the order of the Appellate Division should be affirmed.

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 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. 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 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.

      . At McKnight’s trial, the People’s ballistics expert testified that he could not determine, within a reasonable degree of scientific certainty, the caliber of either of the bullets that hit Smith because of their condition. He also testified that, based on his training and experience, the weight of the bullet that struck Smith in the chest was consistent with a 9 millimeter round, while the weight and “twists” of the bullet that struck him in the left calf were consistent with a .45 caliber round. The medical examiner who performed Smith’s autopsy testified to a reasonable degree of scientific and medical certainty that the cause of his death was “gunshot wounds of the chest and leg with perforation of the lung and trachea.”

      . Brown was tried jointly with McKnight, but before a separate jury. He was convicted of murder and attempted murder in the second degree and criminal possession of a weapon in the second degree (former Penal Law § 265.03 [2]), and sentenced to consecutive terms of imprisonment of 25 years to life for murder and 15 years for attempted murder, to run concurrently to a term of imprisonment of 10 years for weapon possession. The Appellate Division affirmed Brown’s judgment of conviction (People v Brown, 60 AD3d 962 [2d Dept 2009], Iv denied 12 NY3d 913 [2009]).

      . According to Bonilla’s attorneys, the trial judge included the standard “transferred intent” paragraph in his second-degree murder charge, instructing that “it is not required that the person who actually dies he the same person whose death was intended to be caused.” In this case, the trial judge tracked the CJI verbatim, telling the jury that “[ujnder our law it is not required that the person who dies be the same person whose death was intended to be caused” (see CJI2d[NY] Penal Law § 125.25 [1]).


source: Caselaw Access Project

author: Pigott, J. Chief Judge Lippman (dissenting in part). Jones, J. (dissenting in part).

license: Public Domain

text:
    [942 NE2d 1026, 917 NYS2d 601]
    The People of the State of New York, Respondent, v Calvin Battles, Appellant.
    Argued November 15, 2010;
    decided December 14, 2010

      POINTS OF COUNSEL

      Calvin Battles, appellant pro se.
    I. Appellant was denied his due process right to a fair trial when nisi prius court failed to follow the mandate of CPL 310.50. (People v Salemmo, 38 NY2d 357; People v Tucker, 55 NY2d 1; People v Worthy, 178 AD2d 454.) II. Appellant was denied his due process right to a fair trial when the prosecutor allowed its witness to testify falsely about material issues in the case and failed to correct this false and misleading testimony. (People v Pelchat, 62 NY2d 97; Mooney v Holohan, 294 US 103; People v Steadman, 82 NY2d 1; People v Savvides, 1 NY2d 554.) III. Appellant was denied his constitutional right to effective assistance of counsel when counsel failed to make a timely objection to the court’s faulty misstatement of a witness’s testimony or otherwise object to the court’s erroneous rulings. (Strickland v Washington, 466 US 668; People v Paul, 212 AD2d 1020; People v Yut Wai Tom, 53 NY2d 44; People v Cooper, 96 AD2d 866; People v Johnson, 79 Misc 2d 880; People

      v Feingold, 7 NY3d 288; People v Payne, 3 NY3d 266; People v Wall, 29 NY2d 863; People v Suarez, 6 NY3d 202; People v Gallagher, 69 NY2d 525.)

      Legal Aid Society, New York City (Svetlana M. Kornfeind, Steven Banks and Andrew C. Fine of counsel), for appellant.
    I. The trial court’s imposition of consecutive sentences was illegal under Penal Law § 70.25 (2), where appellant committed multiple offenses through his “single act” of starting a fire. (People v Rosas, 8 NY3d 493; People v Ramirez, 89 NY2d 444; People v Snyder, 241 NY 81; People v Day, 73 NY2d 208; People v Underwood, 52 NY2d 882; People v Laureano, 87 NY2d 640; People v Ruiz, 291 AD2d 418; People v Lopez, 262 AD2d 659; People v Feingold, 7 NY3d 288; People v Kirkwood, 165 AD2d 881.) II. In sentencing appellant as a discretionary persistent felony offender to increased sentences on the assault counts, the court based its determination on facts other than recidivism by a mere preponderance of the evidence, thereby denying appellant his constitutional rights to due process and a jury trial. (Apprendi v New Jersey, 530 US 466; Cunningham v California, 549 US 270; United States v Booker, 543 US 220; Blakely v Washington, 542 US 296; Ring v Arizona, 536 US 584; People v Quinones, 12 NY3d 116; People v Daniels, 5 NY3d 738; People v Rivera, 5 NY3d 61; People v Rosen, 96 NY2d 329.)

      Charles J. Hynes, District Attorney, Brooklyn (Solomon Neubort and Leonard Joblove of counsel), for respondent.
    I. The imposition of consecutive sentences was proper because separate and distinct acts underlay each of the crimes and the acts constituting each crime were not material elements of any of the other crimes. (People v Laureano, 87 NY2d 640; People v Brown, 80 NY2d 361; People v Di Lapo, 14 NY2d 170; People v Ramirez, 89 NY2d 444; People v Rosas, 8 NY3d 493; People v Day, 73 NY2d 208; People v Ford, 11 NY3d 875; People v Sala, 95 NY2d 254; People v Dekle, 56 NY2d 835; People v Hernandez, 82 NY2d 309.) II. Defendant’s challenge to the constitutionality of his sentencing as a discretionary persistent felony offender is unpreserved and meritless. (Apprendi v New Jersey, 530 US 466; People v Rosen, 96 NY2d 329, 534 US 899; People v Rivera, 9 NY3d 904; Brown v Greiner, 409 F3d 523; Brown v Miller, 451 F3d 54, 549 US 1120; Estelle v McGuire, 502 US 62; Almendarez-Torres v United States, 523 US 224; Cunningham v California, 549 US 270; Blakely v Washington, 542 US 296; People v Quinones, 12 NY3d 116.)
   OPINION OF THE COURT

Pigott, J.

One person was burned to death and three others severely burned as a result of defendant’s pouring gasoline over several individuals and setting a fire. The primary issue before us is whether, under the facts of this case, following defendant’s conviction, the court’s sentencing of defendant to consecutive terms of imprisonment was proper. A review of the evidence presented at trial is necessary.

On July 8, 2004 and into the early next morning, several people, including Gregory Davis, Ronald Davis, and Stephen Wheeler, were at Arthur Elliott’s apartment, a known crack cocaine den. Defendant Calvin Battles arrived, and at some point got into an argument with Ronald Davis. Defendant left, but later returned, threatening to burn the place. Then using a gasoline can that had been retrieved from his truck, defendant, lighter in hand, began splashing gasoline throughout the apartment. Defendant pushed Ronald Davis to the floor and doused him with gasoline. He then poured gasoline over Gregory Davis’s head. After exchanging words with Elliott, defendant threw gasoline on him as well.

As defendant attempted to ignite the lighter, Elliott pushed defendant, who was in the doorway, out of the apartment. Defendant and Elliott scuffled and a fire broke out. The lower part of Elliott’s body burst into flames as he fell back into the apartment, igniting the entire living room. As a result, Ronald Davis was burned to death and Gregory Davis, Stephen Wheeler and Arthur Elliott sustained severe burns.

After a jury trial, defendant was convicted of depraved indifference murder (Penal Law § 125.25 [2]), second-degree manslaughter (Penal Law § 125.15 [1]), and three counts of depraved indifference assault (Penal Law § 120.10 [3]). He was sentenced as a persistent felony offender to concurrent sentences of 25 years to life on the depraved indifference murder and manslaughter convictions, to be followed by consecutive terms of 25 years to life on the depraved indifference assault convictions related to Gregory Davis and Wheeler, and a consecutive term of 20 years to life on the depraved indifference assault conviction related to Elliott, for an aggregate sentence of 95 years to life.

Defendant appealed, asserting, among other claims, that the imposition of consecutive sentences was illegal because the victims were all burned in a fire that had a single source of ignition, and that his sentencing as a persistent felony offender was unconstitutional under Apprendi v New Jersey (530 US 466 [2000]).

The Appellate Division modified the judgment by vacating the conviction of second-degree manslaughter (see Penal Law § 125.15 [1]) and the sentence imposed thereon, and otherwise affirmed (65 AD3d 1161 [2d Dept 2009]). As relevant to this appeal, the court held that defendant’s Apprendi claim was unpreserved and without merit (id. at 1162). The court further rejected, without discussion, defendant’s consecutive sentencing claim as without merit (id.).

A Judge of this Court granted leave to appeal (13 NY3d 905 [2009]) and we now modify.

Defendant contends that the consecutive sentences for the depraved indifference murder and depraved indifference assault counts are illegal under Penal Law § 70.25 (2) because those crimes shared a common actus reus—defendant’s single act of starting the fire.

Penal Law § 70.25 requires that concurrent sentences be imposed “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” (Penal Law § 70.25 [2]). To determine whether consecutive sentences are permitted, a court must first look to the statutory definitions of the crimes at issue (People v Frazier, 16 NY3d 36 [2010] [decided today]).

Here, the inquiry begins with the depraved indifference murder statute, which requires proof that “under circumstances evincing a depraved indifference to human life, [the defendant] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law § 125.25 [2]). The statutory definition of depraved indifference assault (Penal Law § 120.10 [3]) differs from that of depraved indifference murder only in the result created by defendant’s conduct: serious physical injury to another.

The imposition of consecutive sentences was permissible in this case with respect to Ronald Davis, Gregory Davis and Elliott because separate acts constituted the actus reus of each of the depraved indifference crimes against those victims. Specifically, the trial judge instructed the jurors that they could find defendant acted with depraved indifference to human life irrespective of whether they were to find that defendant was the one who ignited the fire. Defendant’s acts of soaking each victim with gasoline in a room where other people were present, and where one of them (Elliott) 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. A determination of the cause of the ignition of the fire was unnecessary to the determination of defendant’s guilt with respect to those depraved indifference counts, and thus, defendant’s argument that the actus reus for all of those crimes was the ignition of the fire fails. Because 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, imposition of consecutive sentences was authorized under the Penal Law.

We conclude, however, that the sentence imposed pertaining to Wheeler must run concurrent to the other sentences. Wheeler was never doused with gasoline, but rather, was sprayed as a result of the dousing of the others. Thus, the risk-creating conduct for his conviction was the same act as that of the others and running his sentence concurrently is required.

Defendant’s challenge to the constitutionality of his sentencing as a persistent felony offender and other claims raised in his pro se brief are without merit (see People v Quinones, 12 NY3d 116 [2009]; see also People v Bell, 15 NY3d 935 [2010] [decided today]).

Accordingly, the order of the Appellate Division should be modified and the case remitted to Supreme Court for further proceedings in accordance with this opinion and, as so modified, affirmed.

Chief Judge Lippman (dissenting in part).

Although at common law the right to a jury determination of all facts essential to punishment was jealously guarded (see e.g. People ex rel. Cosgriff v Craig, 195 NY 190 [1909]), more recent history in this and many other states has witnessed judicial acquiescence in legislative initiatives that effectively resituate fact-finding power necessary to the justification of punishment from the jury to judges. This transfer has been effected most frequently by statutes permitting the enhancement of otherwise prescribed sentences based on judicial findings, often by a mere preponderance, respecting a defendant’s criminal history, the circumstances of the offense before the court, and what the statutorily relevant findings collectively portend respecting the risk posed by the defendant’s eventual reintroduction to society. It was widely believed that these kinds of findings fell comfortably within the discretionary power judges have traditionally exercised in sentencing criminal defendants and that they neither diminished the fact-finding prerogative of the jury nor compromised the Sixth Amendment right to a jury trial. This perception we now know was wrong, indeed dramatically so. In Apprendi v New Jersey (530 US 466 [2000]) the Supreme Court held that “[i]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt” (id. at 490 [internal quotation marks and citation omitted]). And, subsequently, in Ring v Arizona (536 US 584 [2002]), Blakely v Washington (542 US 296 [2004]) and Cunningham v California (549 US 270 [2007]), the Court made it unambiguously clear that judicial authority to impose punishment was constitutionally tied to and limited by the jury verdict and any admissions by defendant. In Blakely, the Court, citing Ring, stated emphatically, “[o]ur precedents make clear . . . that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant” (542 US at 303), and in Cunningham it reiterated that “[i]f the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied” (549 US at 290 [emphasis added]).

The rule of Apprendi is not so much a limitation on the power of judges, but a reassertion of the prerogative constitutionally reserved to the jury to determine facts necessary to the imposition of punishment at a prescribed level. Only a single exception to this rule of constitutional power allocation has been recognized and that is the “narrow” one carved out in Almendarez-Torres v United States (523 US 224 [1998]), where judicially effected sentence enhancements based solely on proof of prior convictions were permitted (see Apprendi, 530 US at 490).

At issue here is the constitutional validity of sentence enhancements imposed pursuant to New York’s statutes governing the sentencing of persistent felony offenders (CPL 400.20; Penal Law § 70.10). Enhanced sentencing under these provisions is conditioned upon a jury verdict convicting a defendant of a felony and two judicial findings described in CPL 400.20 (D:

“Such sentence may not be imposed unless, based upon evidence in the record of a hearing held pursuant to this section, the court (a) has found that the defendant is a persistent felony offender as defined in subdivision one of section 70.10 of the penal law, and (b) is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest” (emphasis added).

Finding “a” must be made on proof beyond a reasonable doubt. Finding “b,” however, may under the statute rest on a mere preponderance of the evidence (CPL 400.20 [5]).

On its face, this provision raises Apprendi issues, since it appears to afford a judge power to impose an enhanced sentence based upon facts not found by the jury or within the AlmendarezTorres carve-out, and to make the findings upon which the statutory enhancement is evidently conditioned on less than proof beyond a reasonable doubt. The constitutionality of sentences imposed under this sentencing scheme has, not surprisingly, been a practically constant subject of litigation since Apprendi.

In People v Rosen (96 NY2d 329 [2001], cert denied 534 US 899 [2001]), and subsequently in more extended form in People v Rivera (5 NY3d 61 [2005], cert denied 546 US 984 [2005]) and People v Quinones (12 NY3d 116 [2009], cert denied 558 US —, 130 S Ct 104 [2009]), we upheld judicially enhanced, persistent felony offender sentences upon the following reasoning: a defendant’s status as a persistent felony offender is determined solely on the basis of his or her prior convictions (see Penal Law § 70.10 [1] [a]), the fact of which, pursuant to AlmendarezTorres, may be proved in a non-jury proceeding; that status having been permissibly established by a judge, the defendant, without more, is “subject to” or “eligible for” enhanced sentencing, with the final determination as to whether he or she should be sentenced within the now available enhanced sentencing range depending upon the discretion of the sentencing judge exercised in accordance with the criteria set forth in subsection (b) of CPL 400.20 (1) (supra). We characterized this mandatory exercise of discretion (see CPL 400.20 [9]) as nothing more remarkable than the setting of a sentence within a permissible range based on traditionally considered sentencing factors.

This rationale has, in turn, been the focus of extensive federal habeas litigation. In March of this year a unanimous panel of the Second Circuit found that its persistence was unreasonable subsequent to the Supreme Court’s decision in Blakely, and, accordingly, that our decisions in Rivera and Quinones misapplied clearly established Supreme Court precedent (Besser v Walsh, 601 F3d 163 [2010]). Besser, however, was shortlived. After en banc reconsideration, it was vacated by the Second Circuit in a divided ruling (Portalatin v Graham, 624 F3d 69 [2010]). Portalatin, though, hardly places a federal imprimatur upon our Apprendi jurisprudence. It was decided under the extraordinarily deferential review standard applicable in federal habeas proceedings pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 (Pub L 104-132, 110 US Stat 1214) and, accordingly, was issued with the remarkable AEDPA caveat,

“ ‘we decide not whether the state court correctly interpreted the doctrine of federal law on which the claim is predicated, but rather whether the state court’s interpretation was unreasonable in light of the holdings of the United States Supreme Court at the time.’ Policano v. Herbert, 507 F.3d 111, 115 (2d Cir.2007)” (Portalatin, 624 F3d at 79).

We agreed to hear the current round of appeals containing Apprendi issues subsequent to Besser but before Portalatin. And, while I think it safe to say that we would not have consented to revisit the Apprendi issues raised by New York’s persistent felony offender sentencing scheme had we anticipated Besser’s vacatur, it seems to me that the question left undecided by Portalatin, namely, whether our interpretation of the controlling holdings of the United States Supreme Court has been correct, merits yet another close look. I do not believe that our persistent felony offender sentencing provisions can ultimately survive constitutional scrutiny and, practically, see nothing to be gained, and much to be lost, in clinging, during what will undoubtedly be further protracted litigation, to a legally flawed sentencing scheme whose entirely proper objectives are capable of being met without constitutional offense. Numerous states with similarly flawed sentencing provisions have taken the judicial and, presumably, the legislative measures necessary to bring their sentencing statutes into agreement with Apprendi (see State v Bell, 283 Conn 748, 931 A2d 198 [2007]; State v Lewis, 590 A2d 149 [Me 1991]; State v Foster, 109 Ohio St 3d 1, 845 NE2d 470 [2006]; State v Fairbanks, 688 NW2d 333 [Minn Ct App 2004]; State v Maugaotega, 115 Haw 432, 168 P3d 562 [2007]; State v Frawley, 143 NM 7, 172 P3d 144 [2007]; State v Gomez, 239 SW3d 733 [Tenn 2007]; State v Price, 217 Ariz 182, 171 P3d 1223 [2007]). There is no reason why New York should not do so as well.

As Chief Judge Kaye and Judge Ciparick pointed out in their dissents in Rivera, Rosen’s attempt at harmonizing New York’s persistent felony offender sentencing scheme with Apprendi was, at the time, at least arguably viable. Walton v Arizona (497 US 639 [1990]), although cast in doubt by Apprendi, had not yet been overruled, and Walton seemed to support the notion, essential to Rosen’s rationale, that a defendant’s mere eligibility for an enhanced sentence was sufficient to vest a judge with authority to impose such a sentence, notwithstanding the need for a further judicial finding to actually permit the sentence. Once Walton was overruled by Ring, however, our ensuing cases, Rivera and Quinones, were deprived of essential support, for Ring, applying Apprendi, held that where a jury verdict was not itself sufficient to support the punishment—where the imposition of punishment could not go forward before some additional judicial finding was made—the punishment could not be constitutionally imposed (536 US at 602). This basic point— that the power of the judge to impose a particular sentence derives from and can be no greater than that afforded by the verdict (or the defendant’s admissions)—was, as noted, forcefully reiterated in Blakely (542 US at 303) and Cunningham (549 US at 290) and, indeed, characterized in both decisions as a “bright line” rule.

Under the New York persistent felony offender sentencing scheme, it is obvious that, even after a defendant has been found a persistent felony offender by reason of a guilty verdict and Almendarez-Torres-sheltered judicial findings as to prior felony convictions, he or she still may not be given an enhanced, class A-I felony sentence. Regardless of whether the defendant is at that point theoretically eligible for or subject to enhanced sentencing, the actual power to impose such a sentence cannot be deemed to have accrued under Apprendi because the enhanced punishment is not statutorily authorized “solely on the basis of the facts reflected in the jury verdict or admitted [or on the basis of prior convictions]”; it depends as well on the additional, not yet made discretionary findings as to the defendant’s history, character and the circumstances of the crime(s) expressly mandated by the statute (see CPL 400.20 [1], [9]). The statute is clear that, absent those findings, a defendant must be sentenced as a second felony offender (see CPL 400.20 [10]).

The task set the sentencing judge by the statute, then, is not, properly understood, one of exercising discretion to situate a sentence within an already permissible enhanced range; it is rather one of determining whether, after prior convictions have been taken into account, there exists a factual predicate to access the enhanced range and impose a sentence exceeding that which could be imposed based on the jury verdict and the defendant’s admissions alone. This judicial exercise, at once removing from the jury the power constitutionally reserved to it to assess facts that increase the prescribed range of penalties to which a defendant is exposed (Apprendi, 530 US at 490) and depriving the defendant of his right to a jury trial at which the prosecution must prove each and every element essential to justify the sentence beyond a reasonable doubt, lies squarely within Apprendi’s prohibition.

While this Court has characterized the discretionary findings described in CPL 400.20 (1) (b) as inessential to eligibility for enhanced sentencing (Rivera, 5 NY3d at 68), that is not a constitutionally significant gloss. It does not and cannot alter the essential constitutional defect in the statute, namely, that there is no reading of it under which the subsection (b) judicial determination—one clearly necessitating findings significantly more far-reaching than the recidivism findings already made pursuant to the statute’s subsection (a), and going well beyond the facts conceivably established by a verdict or admitted by the defendant—may be deemed dispensable to the actual imposition of an enhanced sentence.

Even if it were possible to imagine a case such as was hypothesized in Rivera (5 NY3d at 70-71), in which a persistent felony offender sentence was, in accordance with the statute, based solely on the verdict and Almendarez-Torres-sheltered findings—and, given the nature of the judicial “opinion” required by the statute this appears impossible—it would remain that the natural and nearly inevitable effect of this enactment is that judges, and not juries, are cast in the role of making factual findings upon which the imposition of a sentence in an enhanced range depends. It does not matter whether these findings themselves require the sentence or whether, as the Rivera court seemed to find significant, they merely permit a sentence the basis for which has otherwise been established; in either case they are necessary to the enhancement’s imposition and under Apprendi may not be constitutionally taken from the jury and committed to a judge (Blakely, 542 US at 305 n 8). Under Apprendi, “the relevant inquiry is not one of form, but of effect” (530 US at 494), and the effect of New York’s persistent felony offender sentencing statutes, as distinguished from any abstract scenario of benign application, is that defendants are, in their ministration, regularly exposed to punishment greater than that which could be imposed upon the jury verdict, the defendant’s admissions and prior convictions alone. It is to this real effect that our jurisprudence should respond.

This case provides a vivid example of impermissible judicial fact-finding in support of sentence enhancement. The jury acquitted defendant of two felony murder counts, evidently upon the finding that the underlying felony, arson, had not been established. And, indeed, the central issue at trial had been whether defendant actually set the fatal blaze or whether it started as an unintended consequence of a victim’s cigarette coming into contact with a gasoline-doused surface. In the postverdict sentencing proceedings, however, the court, in the course of setting upon the record his findings in support of the enhanced sentences he was about to impose, stated: “The circumstances surrounding this case, I mean, let us think about this: Going in and pouring gasoline on a person, lighting that gasoline, killing and maiming these people, if that is not a heinous crime, I don’t know what is” (emphasis added).

The judicial fact-finding in this case did not merely supplement the verdict, as ordinarily occurs in consequence of following the statute, it materially differed from, indeed conflicted with it. The court’s crucial enhancement finding that defendant lit the gasoline was one that the jury specifically declined to make when it acquitted defendant on the arson-based counts. It is one thing for a court to make enhancement findings that add to the predicate supplied by the verdict, defendant admissions and prior convictions—that is objectionable enough under Apprendi—it is quite another when the court’s findings essentially nullify a critical component of the verdict. Yet, under this statute that can happen because the judge is directed to form an “opinion” respecting “the nature and circumstances of [the defendant’s] criminal conduct” and may, unlike the jury, do so upon a mere preponderance of the evidence. Here, the transfer of essential fact-finding power from the jury to the judge has achieved undoubted perfection and is on numerous counts undoubtedly unconstitutional. It will suffice for present purposes to observe that this sort of fact-finding is absolutely antithetical to the Sixth Amendment guarantee of a jury trial and is, of course, quintessentially violative of Apprendi.

Inasmuch as it appears clear that defendant was unconstitutionally deprived of a jury determination of facts essential to justify his enhanced sentences, lack of preservation should not be deemed an impediment to our consideration of his Apprendibased arguments. There can be no more pronounced a departure from the mode of proceedings prescribed by law than the denial of a criminal defendant’s right to have each and every element necessary to imposition of the authorized punishment proved to a jury beyond a reasonable doubt. The rules of preservation are not legitimately interposed to avoid such a fundamental claim (see People v Patterson, 39 NY2d 288, 295 [1976], affd 432 US 197 [1977]), and our cases, fairly construed, have not so held. We have held that the challenged sentencing scheme does not involve an Apprendi violation, we have not held that a meritorious Apprendi claim would be unreviewable for lack of preservation.

The Supreme Court in Cunningham had occasion to describe the rationale offered by the California Supreme Court in People v Black (35 Cal 4th 1238, 113 P3d 534 [2005]) in justification of the fact-finding role assigned the judge by the California Legislature under the Determinate Sentencing Law (DSL):

“In that court’s view, the DSL survived examination under our precedent intact. See 35 Cal. 4th, at 1254-1261, 113 P. 3d, at 543-548. The Black court acknowledged that California’s system appears on surface inspection to be in tension with the rule of Apprendi. But in ‘operation and effect,’ the court said, the DSL ‘simply authorizefs] a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range.’ 35 Cal. 4th, at 1254, 113 P. 3d, at 543. Therefore, the court concluded, ‘the upper term is the “statutory maximum” and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi, Blakely, and Booker. Ibid. . . .
“The Black court’s conclusion that the upper term, and not the middle term, qualifies as the relevant statutory maximum, rested on several considerations. First, the court reasoned that, given the ample discretion afforded trial judges to identify aggravating facts warranting an upper term sentence, the DSL
“ ‘does not represent a legislative effort to shift the proof of particular facts from elements of a crime (to be proved to a jury) to sentencing factors (to be decided by a judge). . . . Instead, it afforded the sentencing judge the discretion to decide, with the guidance of rules and statutes, whether the facts of the case and the history of the defendant justify the higher sentence. Such a system does not diminish the traditional power of the jury.’ Id., at 1256, 113 P. 3d, at 544 (footnote omitted)” (549 US at 289-290 [emphasis added]).

To this now all too familiar account by a state high court of its justification for retaining, subsequent to Apprendi, a sentencing scheme reposing essential fact-finding power in a judge rather than a jury, the Cunningham court replied,

“We cautioned in Blakely, however, that broad discretion to decide what facts may support an enhanced sentence, or to determine whether an enhanced sentence is warranted in any particular case, does not shield a sentencing system from the force of our decisions. If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied. 542 U.S., at 305, and n. 8” (549 US at 290 [emphasis added]).

There is for Apprendi purposes no material difference between the California DSL and our persistent felony offender sentencing statutes. Nor is there any significant difference in the reasoning in our cases and that offered by the California Supreme Court in Black. While perhaps through some jurisprudential fluke our sentencing scheme will ultimately be spared the fate of the California DSL, I do not think it prudent to count on it.

Accordingly, while I concur with the majority’s modification, I dissent in part and would further modify the appealed order. Defendant is, in my view, entitled to the vacatur of his sentences on the first-degree assault counts and should be resentenced on those counts as a second felony offender.

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]). 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 “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 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 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, 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 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.

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 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.”


author: Graffeo, J. Ciparick, J. (dissenting).

text:
    [942 NE2d 277, 917 NYS2d 68]
    Marvin Gibbs, Respondent, v St. Barnabas Hospital, Respondent, and Fausto Vinces, M.D., Appellant, et al., Defendants.
    Argued November 16, 2010;
    decided December 16, 2010

      POINTS OF COUNSEL

      Kaufman Borgeest & Ryan, LLP, Valhalla (Jacqueline Mandell of counsel), for appellant.
    I. It is error, as a matter of law, to relieve the default of a party who fails to demonstrate both a reasonable excuse for his neglect and the merits of his cause of action. (Fiore v Galang, 64 NY2d 999; Flax v Standard Sec. Life Ins. Co. of N.Y., 150 AD2d 894; Neveloff v Faxton Children’s Hosp. & Rehabilitation Ctr., 227 AD2d 457; Gilmore v Garvey, 31 AD3d 381; Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827; Hesse Constr., LLC v Fisher, 61 AD3d 1143; Foster v Dealmaker, SLS, LLC, 63 AD3d 1640; Ensley v Snapper, Inc., 62 AD3d 403; AWL Indus., Inc. v QBE Ins. Corp., 65 AD3d 904; Fidelity & Deposit Co. of Md. v Andersen & Co., 60 NY2d 693.) II. The plaintiffs complaint should have been dismissed because a litigant cannot ignore court orders with impunity. (Kihl v Pfeffer, 94 NY2d 118; Brill v City of New York, 2 NY3d 648; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725; Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, PC. [Habiterra Assoc.], 5 NY3d 514; Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827.)

      Napoli Bern Ripka, LLP, New York City (Denise A. Rubin of counsel), for Marvin Gibbs, respondent.
    I. This Court’s decision in Wilson v Galicia Contr. & Restoration Corp. (10 NY3d 827 [2008]) is factually distinguishable from the matter at bar and thus inapposite; the Appellate Division properly declined to apply the rule cited therein to the matter at bar. II. The Appellate Division properly found no abuse of Supreme Court’s discretion and correctly affirmed. (Marks v Vigo, 303 AD2d 306; Cespedes v Mike & Jac Trucking Corp., 305 AD2d 222; Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827; Jaffe v Hubbard, 299 AD2d 395; Gross v Edmer Sanitary Supply Co., 201 AD2d 390; Martin v City of New York, 46 AD3d 635; Novick v DeRosa, 51 AD3d 885; Strauss v Vladeck, 173 AD2d 1063; Sabatello v Frescatore, 200 AD2d 939; 148 Magnolia, LLC v Merrimack Mut. Fire Ins. Co., 62 AD3d 486.) III. Supreme Court properly exercised its discretion by denying the motion for preclusion and dismissal upon a finding that there was no apparent willfulness or contumacious behavior on the record. (Moran v Rynar, 39 AD2d 718; Dauria v City of New York, 127 AD2d 459; Reyes v Riverside Park Community [Stage I], Inc., 47 AD3d 599; E & M Adv. West/Camelot Media, Inc. v Vertical Lend, Inc., 45 AD3d 502; Jones v New York City Tr. Auth., 293 AD2d 322; Sony Corp. of Am. v Savemart, Inc., 59 AD2d 676; Cambry v Lincoln Gardens, 50 AD3d 1081; Pascarelli v City of New York, 16 AD3d 472; Carella v Reilly & Assoc., 297 AD2d 326; Cooper v Shepherd, 280 AD2d 337.) IV Absent a showing that Supreme Court improvidently abused its discretion, an order denying dismissal under CPLR 3126 should not be disturbed on appeal. (Jaffe v Hubbard, 299 AD2d 395; Gross v Edmer Sanitary Supply Co., 201 AD2d 390; Martin v City of New York, 46 AD3d 635; Novick v DeRosa, 51 AD3d 885; Strauss v Vladeck, 173 AD2d 1063; Sabatello v Frescatore, 200 AD2d 939; Cafaro v Emergency Servs. Holding, Inc., 11 AD3d 496; Porreco v Selway, 225 AD2d 752; Recht v Teuscher, 176 AD2d 863; Wolfson v Nassau County Med. Ctr., 141 AD2d 815.)

      Garbarini & Scher, P.C., New York City William D. Buckley of counsel), for St. Barnabas Hospital, respondent.
    Although Dr. Vinces and plaintiff did not settle their claims through a release or a covenant not to sue, equity nonetheless requires the trial court to apply General Obligations Law § 15-108 to provide St. Barnabas Hospital with a reduction of the claims against it in proportion to any liability the finder of fact might ascribe to Dr. Vinces. Williams v Niske, 81 NY2d 437; Whalen v Kawasaki Motors Corp., U.S.A., 92 NY2d 288; Killeen v Reinhardt, 71 AD2d 851; Garcea v Battista, 53 AD3d 1068; Bonnot v Fishman, 88 AD2d 650, 57 NY2d 870.)
   OPINION OF THE COURT

Graffeo, J.

In this medical malpractice action, plaintiff failed to serve a supplemental bill of particulars before the deadline set by a conditional order of preclusion. Consistent with our precedent, we conclude that the trial court erred as a matter of law in excusing the default without requiring plaintiff to establish both a reasonable excuse for his noncompliance and a meritorious cause of action.

In June 2005, plaintiff Marvin Gibbs commenced this medical malpractice action against a number of defendants, including Dr. Fausto Vinces. The claim arose out of treatment plaintiff received for his right hip while a patient at defendant St. Barnabas Hospital. In August 2005, Dr. Vinces served plaintiff with an answer, various disclosure demands and a demand for a bill of particulars within 30 days, as authorized by CPLR 3042.

When there was no response after 30 days, Dr. Vinces’ counsel sent plaintiff a letter on January 24, 2006 requesting that a bill of particulars be provided within 10 days “or we will have no alternative but to move to compel production of same.” The following day, Dr. Vinces’ counsel notified plaintiff that he had not yet satisfied a number of the other discovery demands as well. Plaintiff failed to reply to either letter. Dr. Vinces’ attorney again issued a letter on March 21, 2006 seeking the bill of particulars and warning that court intervention would be necessary if plaintiff failed to comply. Again, no response was forthcoming from plaintiff. On May 24, 2006, Dr. Vinces’ attorney forwarded plaintiff yet another letter demanding a bill of particulars and the production of other disclosure items within 10 days. Plaintiff did not request an extension of time to respond or in any way reply to these multiple requests.

As a result, in June 2006, Dr. Vinces moved to compel plaintiff to comply with the demand for a bill of particulars and the discovery demands, and requested that the court sanction plaintiff under CPLR 3042 and 3126 by dismissing the complaint or precluding plaintiff from offering evidence at trial regarding Dr. Vinces’ alleged negligence. Plaintiff finally served a bill of particulars in August 2006, one year after the doctor’s initial demand. Dr. Vinces agreed to withdraw his motion, even though a number of other discovery items remained outstanding.

At a preliminary conference conducted in November 2006, Supreme Court determined that plaintiffs bill of particulars was “unsatisfactory” and directed plaintiff to furnish a supplemental bill of particulars within 30 days clarifying, among other things, the specific allegations of negligence against Dr. Vinces. Plaintiff did not supply the supplemental bill and, in January 2007, Dr. Vinces moved pursuant to CPLR 3126 to strike the complaint or foreclose plaintiff from submitting evidence of negligence at trial based on plaintiffs willful noncompliance.

Supreme Court conditionally granted the motion and issued a conditional preclusion order on February 21, 2007, stating that plaintiff would be barred from offering evidence as to Dr. Vinces’ negligence if plaintiff did not serve the supplemental bill of particulars within 45 days. Although Dr. Vinces sent a reminder letter to plaintiff on March 7, 2007, plaintiff did not submit a supplemental bill before the court-imposed deadline, nor did plaintiff request an extension of time to respond or otherwise seek relief prior to the expiration of plaintiffs time to comply under the terms of the order.

Consequently, in May 2007, Dr. Vinces moved to enforce the conditional order of preclusion and for summary judgment dismissing the complaint as against him on the basis that plaintiff could no longer supply any evidence of negligence under the order, which became absolute when plaintiff failed to comply with its terms. Plaintiff served a supplemental bill of particulars in June 2007, approximately 75 days after the deadline specified in the preclusion order.

In opposition to the motion to enforce the conditional preclusion order, plaintiff asserted that Dr. Vinces had received the supplemental bill of particulars and therefore could not demonstrate prejudice. Plaintiff further acknowledged that “a defaulting party can be relieved of preclusion on the showing of a meritorious claim and a reasonable excuse for the delay” and claimed that he had met those requirements. In particular, plaintiffs counsel submitted an affirmation explaining that the untimely supplemental bill of particulars was the result of “inadvertent law office failure” because a different attorney from the law firm had attended the prior court proceeding that resulted in the February 21, 2007 conditional preclusion order and the expiration date had not been diaried on her calendar. Rather than providing an affidavit of merit to satisfy the second prong of the requisite showing—the meritorious claim—plaintiff claimed that Dr. Vinces’ “motion does not suggest that plaintiff does not have a meritorious claim.”

Supreme Court granted Dr. Vinces’ motion but only to the extent of directing plaintiff to pay $500 as costs for his delay in complying with discovery. The Appellate Division, with one Justice dissenting, affirmed (61 AD3d 599 [1st Dept 2009]). The majority concluded that the trial court did not abuse its discretion in declining to enforce the conditional preclusion order. The dissenter would have enforced the order and granted Dr. Vinces summary judgment, reasoning that the trial court erred in relieving plaintiff of his default without requiring him to demonstrate a reasonable excuse and a meritorious claim. The Appellate Division granted Dr. Vinces leave to appeal and certified the following question to this Court: “Was the order of this Court, which affirmed the order of the Supreme Court, properly made?” We answer this question in the negative.

Under CPLR 3042 (d), a court may invoke the relief set forth in CPLR 3126 when a “party served with a demand for a bill of particulars willfully fails to provide particulars which the court finds ought to have been provided pursuant to this rule.” CPLR 3126, in turn, governs discovery penalties and applies where a party “refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed.” The statute contains a list of nonexclusive sanctions and further permits courts to fashion orders “as are just.” CPLR 3126 therefore broadly empowers a trial court to craft a conditional order—an order “that grants the motion and imposes the sanction ‘unless’ within a specified time the resisting party submits to the disclosure” (Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3126:10 [“The conditional order is in fact the most popular disposition under CPLR 3126”]; see also CPLR 3042 [d]).

The situation that developed in this case is, unfortunately, a scenario that we have seen before. In Fiore v Galang (64 NY2d 999 [1985], affg 105 AD2d 970 [3d Dept 1984]), a medical malpractice action, the trial court granted a 30-day conditional order of preclusion directing plaintiffs to serve a bill of particulars on the defendant hospital. Following plaintiffs’ lack of compliance with the order, the hospital moved for summary judgment dismissing the complaint. The trial court denied the motion on the condition that plaintiffs serve a bill of particulars and pay $415 to the hospital’s attorneys. On appeal, the Appellate Division reversed and dismissed the complaint, concluding that the trial court erred in excusing the default without requiring plaintiffs to offer both a reasonable excuse and an affidavit of merit. We affirmed, explaining that “absent a sufficient affidavit of merits it was error, as a matter of law, not to grant defendant Hospital’s motion for summary judgment” (id. at 1000 [emphasis added]).

Hence, we have made clear that to obtain relief from the dictates of a conditional order that will preclude a party from submitting evidence in support of a claim or defense, the defaulting party must demonstrate (1) a reasonable excuse for the failure to produce the requested items and (2) the existence of a meritorious claim or defense (see id. at 1000-1001; see also Smith v Lefrak Org., 96 AD2d 859 [2d Dept 1983], affd for reasons stated 60 NY2d 828 [1983]; Amodeo v Radler, 89 AD2d 594 [2d Dept 1982], affd 59 NY2d 1001 [1983]). In cases involving a medical malpractice cause of action, “expert medical opinion evidence is required to demonstrate merit” under the second requirement (Fiore, 64 NY2d at 1001).

Consistent with Fiore, all four departments of the Appellate Division have required plaintiffs to satisfy the two-prong test in cases involving conditional orders that were triggered by failures to submit a bill of particulars by court-imposed deadlines (see Goldstein v Janecka, 172 AD2d 463 [1st Dept 1991]; Gilmore v Garvey, 31 AD3d 381 [2d Dept 2006]; Clanton v Vagianellis, 192 AD2d 943 [3d Dept 1993]; Foster v Dealmaker, SLS, LLC, 63 AD3d 1640 [4th Dept 2009], Iv denied 15 NY3d 702 [2010]).

In this case, the Appellate Division majority’s analysis overlooked the two-part test in determining that Supreme Court’s decision not to enforce the preclusion order was not an abuse of discretion warranting reversal. We certainly understand the Appellate Division’s concern that courts be permitted to exercise discretion in the pretrial management of their caseloads, particularly when resolving disputes between parties involving the adequacy of pleadings and the use of discovery devices. But there is also a compelling need for courts to require compliance with enforcement orders if the authority of the courts is to be respected by the bar, litigants and the public. Here, approximately one year elapsed from the date of the initial demand for a bill of particulars to the service of the bill of particulars that was eventually found by Supreme Court to be inadequate. During that year, despite Dr. Vinces’ written requests for compliance, plaintiff apparently ignored the applicable statutory time periods, without taking the simple step of contacting the opposing party to ask for an extension or seeking the assistance of Supreme Court to clarify or modify the requests. And, even after Supreme Court determined that a supplemental bill was necessary, another seven months passed before that document was forthcoming—and its service was 75 days after the due date specified in the order of preclusion. Again, no attempt was made to request an extension or seek some form of relief from the court prior to the expiration of the time period set forth in the order.

As this Court has repeatedly emphasized, our court system is dependent on all parties engaged in litigation abiding by the rules of proper practice (see e.g. Brill v City of New York, 2 NY3d 648 [2004]; Kihl v Pfeffer, 94 NY2d 118 [1999]). The failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent. Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution. Furthermore, those lawyers who engage their best efforts to comply with practice rules are also effectively penalized because they must somehow explain to their clients why they cannot secure timely responses from recalcitrant adversaries, which leads to the erosion of their attorney-client relationships as well. For these reasons, it is important to adhere to the position we declared a decade ago that “[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity” (Kihl, 94 NY2d at 123).

All of these concerns are implicated in this case, which is not difficult to resolve since our 1985 decision in Fiore is clearly controlling. When plaintiff failed to satisfy Supreme Court’s November 2006 order directing him to supply a supplemental bill of particulars within 30 days, the court afforded plaintiff a final opportunity to comply by conditionally granting Dr. Vinces’ motion to preclude on February 21, 2007, giving plaintiff 45 days to serve the supplemental bill. Upon default, plaintiff was obligated to provide a reasonable excuse and an expert affidavit to avoid the consequences of the preclusion order. Even assuming for the sake of argument that plaintiffs excuse of law office failure was reasonable—a finding not made by Supreme Court or the Appellate Division majority—plaintiff failed to submit an affidavit from a medical expert establishing the basis of the alleged medical malpractice claim. This deficiency is fatal under Fiore. Given that the preclusion order prevents plaintiff from offering any evidence in support of his claim that Dr. Vinces committed malpractice, summary judgment in Dr. Vinces’ favor, as a matter of law, should have been awarded.

Finally, we reject plaintiffs premise, accepted by the dissent, that the conditional preclusion order should not be enforced because plaintiffs conduct during the discovery process was not “willful.” It is true that CPLR 3042 requires a finding of willfulness where a party fails to respond to or comply fully with a demand for a bill of particulars, and that CPLR 3126 prescribes a similar willfulness element where a party “fails to disclose information which the court finds ought to have been disclosed.” But here plaintiff did not just fail to comply with a demand, he disregarded court orders. In such a situation:

“The courts usually prefer to determine whether the disclosure is required and, if it is, to make an order directing the party to make the disclosure whether the prior refusal was wilful or not. The order is usually a conditional one, applying a sanction unless the disclosure is made within a stated time. With this conditioning, the court relieves itself of the unrewarding inquiry into whether a party’s resistance was wilful” (Siegel, NY Prac § 367, at 608 [4th ed]).

It is undisputed that plaintiff failed to respond to Dr. Vinces’ periodic demands for a bill of particulars and various discovery items between August 2005 and August 2006. Regardless of whether these failures are characterized as willful, plaintiff also disregarded Supreme Court’s November 2006 order obligating him to serve a supplemental bill of particulars within 30 days. More importantly, plaintiff did not abide the dictates of the February 21, 2007 conditional preclusion order. Upon plaintiffs default, the order became absolute, obligating him to satisfy the well-established two-part test embraced by this Court in Fiore. Plaintiff having failed to do so, Dr. Vinces was entitled to dismissal of the complaint.

In reaching this conclusion, we reiterate that “[l]itigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated” (Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 521 [2005]; see also Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727 [2004]; Brill, 2 NY3d at 652-653; Kihl, 94 NY2d at 123).

Accordingly, the order of the Appellate Division should be reversed, with costs, the motion of defendant Vinces to enforce the conditional order of preclusion and for summary judgment dismissing the complaint against him granted, and the certified question answered in the negative.

Ciparick, J. (dissenting).

As the majority notes, CPLR 3042 and 3126 confer broad discretion on trial courts to craft discovery sanctions. A court “may” issue a final or conditional order “as is just” if a party “willfully fails to provide particulars which the court finds ought to have been provided” (CPLR 3042 [d]; see also CPLR 3126).

Neither Supreme Court nor the Appellate Division found that the behavior of plaintiffs counsel was sufficiently egregious to merit the harsh sanction of preclusion. To the contrary, Supreme Court stated that the conduct “was dilatory but not intentioned and . . . [did] not warrant the extreme measure of precluding” counsel from presenting plaintiffs case. The Appellate Division affirmed, finding “no evidence that plaintiffs inaction was willful, contumacious, or the result of bad faith” (Gibbs v St. Barnabas Hosp., 61 AD3d 599, 600 [1st Dept 2009]). Thus, although the CPLR makes willfulness a prerequisite for preclusion, the majority here is imposing the sanction where there is an affirmed finding that Gibbs’ behavior was not willful.

Because of this affirmed factual finding, this case is easily distinguishable from Fiore v Galang (64 NY2d 999 [1985]), Smith v Lefrak Org. (60 NY2d 828 [1983]), Amodeo v Radler (59 NY2d 1001 [1983]), and other cases cited by the majority. These cases establish that, as the majority emphasizes, a defaulting party must establish reasonable excuse for the delay and provide an affidavit of merit (see Fiore, 64 NY2d at 1000, affg 105 AD2d 970 [3d Dept 1984]). They do not alter the CPLR’s willfulness requirement, nor do they permit us to make a finding of willfulness and apply a sanction expressly rejected by the courts below. I would therefore affirm the Appellate Division’s order.

Judges Read, Smith and Pigott concur with Judge Graffeo; Judge Ciparick dissents and votes to affirm in a separate opinion in which Chief Judge Lippman and Judge Jones concur. Order reversed, etc.

      . Plaintiffs counsel, for the first time, also claimed that plaintiffs expert could not further amplify the allegations of negligence contained in the original bill of particulars.

      . Plaintiff suggests that Supreme Court in effect reconsidered its prior conditional preclusion order. Although the trial judge was entitled to reconsider the order, we will not assume she reconsidered it when there was no request to do so and no indication that she treated it as such.

      . It is interesting to note that in 1984, the trial court in Fiore ordered a monetary sanction of $415 and, 25 years later, a $500 sanction was determined to be sufficient in this case.