The People, Respondent,v.Ryan P. Brahney, Appellant.BriefN.Y.February 9, 2017Time Requested: 10 Minutes Oral Argument 5 Minutes Rebuttal STATE OF NEW YORK COURT OF APPEALS ___________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v RYAN BRAHNEY Appellant. ___________________________________________________ Brief for Appellant Cayuga County Indictment No. 2011-216 APL-2015-00151 Submitted by: Kathryn Friedman, Esq. PO Box 200 465 Grant Street Buffalo, New York 14213 January 7, 2016 TABLE OF CONTENTS PAGE Table of Authorities -i- Questions Presented 1 Brief Answer 1 Jurisdictional Statement 1 Facts 4 Argument 13 County Court erred as a matter of law in directing that the sentences for Appellant’s conviction of two counts of Burglary in the First Degree (Penal Law § 140.30[2]-[3]) must run consecutive to the sentence for his conviction of Murder in the Second Degree (intentional murder) (Penal Law § 125.25[1]) Conclusion 22 i TABLE OF AUTHORITIES New York State Cases People v Anderson, 254 AD2d 701 (4 th Dept. 1998), lv. denied 92 NY2d 980 (1998) 20 People v Dean, 8 NY3d 929, 930-931 (2007) 22 People v Frazier, 16 NY3d 36 (2010) 15 People v Fulton, 257 AD2d 774 (3 rd Dept. 1989), lv. denied 93 NY2d 1018 (1989) 21 People v Larew, 11 AD3d 727 (3 rd Dept. 2004) 20, 21 People v Laureano, 87 NY2d 640 (1996) passim People v Rodriguez, 25 NY3d 238 (2015) 14, 15 People v McCloud, 182 AD2d 835 (2 nd Dept. 1992), lv. denied 80 NY2d 906 (1992) 21 People v McKnight, 16 NY3d 43, 48 (2010) 15, 19 People v Ramirez, 89 NY2d 444 (1996) 15, 22 People v Roman, 279 AD2d 485 (2 nd Dept. 2001), lv. denied 96 NY2d 806 (2001) 16 New York State Statutes CPL 460.20 3, 13 CPLR 5602(a) 3 Penal Law § 70.25(2) passim Penal Law § 125.25(1) passim Penal Law § 140.30(2) passim ii Penal Law § 140.30(3) passim Penal Law § 215.51(b)(v)-(vi) 2, 4 Penal Law § 265.01 2, 5 1 QUESTION PRESENTED Whether County Court erred as a matter of law in directing that the sentences for Appellant’s conviction of two counts of Burglary in the First Degree (Penal Law § 140.30[2]-[3]) must run consecutive to the sentence for his conviction of Murder in the Second Degree (intentional murder) (Penal Law § 125.25[1]). BRIEF ANSWER Yes. Appellant’s consecutive sentencing on both burglary counts violates the first prong of analysis under Penal Law § 70.25(2) and this Court’s long- standing holding in People v Laureano (87 NY2d 640 [1996]), i.e., the People failed to meet their burden of pointing to identifiable facts in the record that unequivocally demonstrate that the burglary and murder offenses were committed through separate and distinct acts. Therefore, Cayuga County Court erred as a matter of law in determining that the burglary and murder offenses were committed through separate and distinct acts and in sentencing Mr. Brahney to consecutive sentences on these convictions. COURT OF APPEALS JURISDICTIONAL STATEMENT Appellant Ryan P. Brahney appeals from a resentence of Cayuga County Court (Leone, J.), rendered on December 3, 2012. On October 25, 2012, Mr. 2 Brahney was convicted of two (2) counts of Murder in the Second Degree (Penal Law § 125.25[1]), two (2) counts of Burglary in the First Degree (Penal Law § 140.30[2]-[3]), two (2) counts of Criminal Contempt in the First Degree (Penal Law § 215.51[b]v]-[vi]) and Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01) for the brutal murder of his ex-girlfriend (the “victim”) in the City of Auburn, New York. Given Ryan’s admissions and certain stipulations agreed to by both parties, the only issue at trial was his intent at the time of the burglary and murder. County Court rejected his defense of extreme emotional disturbance; he was sentenced, inter alia, as a second felony offender in the following manner: • Count 1 Murder in the Second Degree (intentional murder) (Penal Law § 125.25[1]): 25 years to life; • Count 2 Murder in the Second Degree (felony murder) (Penal Law § 125.25[1]): 25 years to life, to run concurrent with count 1 • Count 3 Burglary in the First Degree (Appellant caused physical injury to the victim) (Penal Law § 140.30[2]): 25 years determinate, 5 years post- release supervision, to run concurrent with counts 2 and 4, but consecutive to count 1; and • Count 4 Burglary in the First Degree (Appellant used or threatened to use a dangerous instrument) (Penal Law § 140.30[3]): 25 years determinate, 5 3 years post-release supervision, to run concurrent with counts 2 and 3, but consecutive to count 1 (R., 20-22). Mr. Brahney appealed to the Appellate Division, Fourth Department. A Court majority affirmed the resentence (People v Brahney [Appeal No. 2], 126 AD3d 1286 [4th Dept. 2015]). Two justices (Centra and Lindley, JJ.) dissented. Appellant moved for permission to appeal to the Court of Appeals pursuant to CPL 460.20, and Justice Stephen K. Lindley granted permission (R., CA4). The Court of Appeals has jurisdiction to hear this appeal pursuant to CPLR 5602(a). The issue was preserved by trial counsel on the record (TT., October 25, 2012, 29 [R., 157]) and hence is reviewable by the Court of Appeals. Appellant is represented by Kathryn Friedman, Esq. (R., CA191). The People of the State of New York have been represented by the Office of the Cayuga County District Attorney throughout the proceedings. The narrow question presented on this appeal is whether County Court erred as a matter of law in directing that the sentences for Appellant’s conviction of two counts of Burglary in the First Degree (Penal Law § 140.30[2]-[3]) must run consecutive to the sentence on his conviction of Murder in the Second Degree (intentional murder) (Penal Law § 125.25[1]). If, as the People contend and the Appellate Division majority agreed, the People met their burden by pointing to 4 identifiable facts in the record that the burglary and the murder were separate and distinct acts, then consecutive sentences are in order. Appellant respectfully submits, however, that the Appellate Division majority failed to undertake proper analysis of the first prong of Penal Law § 70.25(2). More pertinently, Appellant contends that the People failed to meet their burden. Neither the testimony of the Chief Medical Examiner, nor the autopsy reports, nor any other evidence in the record clearly demonstrates that the burglary and murder were separate and distinct acts. Rather, the evidence demonstrates that the victim died from multiple stab wounds to the neck, chest and back. Not one scintilla of evidence was presented that the wounds inflicted on the victim in the downstairs living room resulted in her death – critical evidence to the People’s position at sentencing. Thus, as the Appellate Division dissenting Justices found, it is possible that the act of causing physical injury to the victim and using or threatening her with a knife were acts that indeed caused her death, therefore, the burglary sentences should run concurrent with the murder sentence. FACTS On November 22, 2011, Ryan Brahney was indicted on two (2) counts of Murder in the Second Degree (Penal Law § 125.25[1]), two (2) counts of Burglary in the Second Degree (Penal Law § 140.30[2]-[3]), two (2) counts of Criminal Contempt in the First Degree (Penal Law § 215.51[b]v]-[vi]) and Criminal 5 Possession of a Weapon in the Third Degree (Penal Law § 265.02[1]) for the brutal murder of his ex-girlfriend (victim) in the City of Auburn, New York (R., 23-24). Ryan and the victim had a volatile relationship over a number of years. They had a three-year old son together; the child was in the house at the time of the murder. Prior to trial, the parties stipulated, inter alia, that Ryan “acting alone caused the death of [the victim] on November 21, 2011 in the early morning hours by stabbing her with a knife in her home . . . .” (TT., October 1, 2012, 20 [R., 54]; R., 29-30). The parties stipulated that Ryan’s DNA was found on the knife handle and in various locations in and around the home; they also stipulated that the victim’s DNA was in the blood on the wall upstairs, on the staircase and on the floor near her body (TT., October 1, 2012, 22-23 [R., 56-57]; R., 29-30). Thus Brahney’s intent was essentially the only issue left at trial (TT., October 1, 2012, 32 [R., 58]). He waived his right to a jury trial (TT., October 1, 2012, 7 [R., 53]; R., 31-32) and proceeded with a bench trial. As relevant to the issue raised on this appeal, the evidence adduced at trial establishes the following: On November 20, 2011, the victim, her male cousin and her cousin’s girlfriend were “hanging out” at the victim’s home early in the evening (TT., October 1, 2012, 97 [R., 59]; 117; R., 26-28). Brahney’s three-year old son also was present in the home (TT., October 1, 2012, 117 [R., 64]) and went to bed around 8:30- 9:00 pm (TT., October 1, 2012, 99; 118 [R., 60; 65]). An ex- 6 boyfriend of the victim came to her apartment around 9:30 pm (TT., October 1, 2012, 101 [R., 61]; 118 [R., 65]; 131 [R., 67]; 133 [R., 68]). Her cousin and his girlfriend left sometime between 9:30-10:30 pm (TT., October 1, 2012, 105-106 [R., 62-63]; 119 [R., 66]; R., 26-28). Shortly thereafter, Mr. Brahney was dropped off near the victim’s apartment by a friend presumably because he had a Christmas stocking for his son; he walked to the victim’s home and knocked on her back door ((TT., October 2, 2012, 186 [R., 74]; TT., October 1, 2012, 133 [R., 68]). He then ran around to the front of the house, making threats and yelling profanities (TT., October 1, 2012, 135-136 [R., 69-70]). The victim called 911; the police arrived on the scene and Brahney hurriedly left (TT., October 1, 2012, 139 [R., 71]; TT., October 2, 2012, 164 [R., 73]). He called his friend, who picked him back up and dropped him off in a parking lot (TT., October 2, 2012, 199 [R., 75]). Brahney went back to the victim’s apartment a short time later. He smashed a window and tore a screen (TT., October 2, 2012, 315 [R., 84]). He gained access to her home and killed her. The scene inside the apartment was “horrible” (TT., October 2, 2012, 335 [R., 94]). There were signs of a struggle in the master bedroom – the comforter was pulled off, clothes and shoes were kicked around and there were glass shards on the floor (TT., October 2, 2012, 328 [R., 92]; 331 [R., 93] [Exhibits 58 and 87 – R., 180, 190]). There was blood on the wall and on the 7 chair (TT., October 2, 2012, 398 [R., 117]; Exhibit 57 [R. 179]). There was blood “all over the place” (TT., October 2, 2012, 329). There also was blood on the wall outside of the master bedroom (TT., October 2, 2012, 398 [R., 117]; R., 33; Exhibit 57 [R., 179]) on the landing, on the wall next to the staircase (TT., October 2, 2012, 331 [R., 93]; 399 [R., 118]; R., 33; Exhibit 55-56 [R., 176-177]) and on the stairs (Exhibit 54 [R., 176]). Blood also was found on the back door frame, on the floor at the bottom of the stairs, on the back door near the handle and on top of the couch under the window in the living room (R., 33 [Exhibit 64 – R., 185). The victim was found on the floor of the living room with a knife sticking out of her left upper chest just below the collar bone (TT., October 2, 2012, 316 [R., 85]; 327 [R., 91]; 373 [R., 99]; Exhibit 52 [R., 174]). There was “a lot” of blood around (TT., October 2, 2012, 328 [R., 92]; Exhibit 63 [R., 184]). There were defensive wounds on her arms (Exhibits 62; 73-76 [R., 183; R., 186-189]). The Chief Medical Examiner for Onondaga County, Robert Stoppacher, testified that the victim sustained 38 stab or incised wounds on her body (TT., October 2, 2012, 369 [R., 95]; see also autopsy reports, R., 34; R., 35-51). There were eleven (11) stab or incised wounds to the head or neck. The most significant was a wound to the neck, which extended into her right chest cavity, tearing the subclavian vein and resulting in the loss of 10 percent of her body’s blood and a collapsed lung (TT., October 2, 2012, 371-372 [R., 97-98]). Also, there was a very deep slash 8 wound that went completely through her nose and into the upper lip, separating the cartilage tip of her nose into two pieces (TT., October 2, 2012, 370 [R., 96]). There were nine (9) stab wounds to the chest, two of which penetrated the chest cavity (TT., October 2, 2012, 373 [R., 99]). One wound was to the upper left chest, just below the collar bone (where the knife was found) and the other entered the left armpit region and entered the chest cavity, causing injury to the heart (TT., October 2, 2012, 374 [R., 100]). One of the wounds also penetrated the front side of the stomach ((TT., October 2, 2012, 375 [R., 101]). There were seven (7) stab wounds to the back, four of which significantly damaged the intestinal organs (TT., October 2, 2012, 375-376 [R., 101-102]). The final eleven (11) wounds were incised or slash wounds to her arms and hands (TT., October 2, 2012, 377 [R., 103]). Stoppacher offered no testimony as to which of the wounds sustained by the victim was fatal; he also did not – indeed could not – identify which wounds were inflicted in which location in the house. Rather, he testified that the victim died of “multiple stab wounds to the neck, chest and back” (TT., October 2, 2012, 380 [R., 106]; R., 35; 37). Stoppacher further testified that more than one of these wounds could have been a fatal wound (TT., October 2, 2012, 387 [R., 108]). Any wound to the chest that caused a collapsed lung, the injury to the heart, the injury to the lung that caused bleeding and the injury to the right neck could have all been fatal (TT., 9 October 2, 2012, 387 [R., 108]). However, there was not a wound that clearly caused death immediately (TT., October 2, 2012, 387 [R., 108]). He testified that if the heart is no longer working, there would be no struggle because a person would not be conscious (TT., October 2, 2012, 390 [R., 390]). Mr. Brahney left the scene and went to the home of his uncle (TT., October 2, 2012, 226 [R., 76]). He told his uncle that he killed the victim and that someone needed to go to her apartment and get his son (TT., October 2, 2012, 228 [R., 78]; 232 [R., 82]). He was primarily concerned with his son’s well-being at this point. He stated that the victim was dead, and when asked how he knew, Brahney replied, “I checked” (TT., October 2, 2012, 229 [R., 79]). He also told his mother in a taped phone call after his arrest that he threw a brick in the window, dragged the victim down the stairs and murdered her (TT., October 3, 2012, 414 [R., 125]). Mr. Brahney was found guilty, inter alia, of two (2) counts of Murder in the Second Degree and two (2) counts of Burglary in the First Degree (TT., October 4, 2012, 662-663 [R., 127-128]). At sentencing, the People argued that, with respect to count 4 (Burglary in the First Degree – Appellant used or threatened to use a dangerous instrument), the burglary was complete upon entering the residence (TT., October 25, 2012, 21-22 [R., 149-150]). They also argued that with respect to count 3 (Burglary in the First Degree – Appellant caused serious physical injury to the victim), this burglary was completed separate and apart from the murder 10 when Mr. Brahney dragged the victim out of her bed, and inflicted injuries upon the victim upstairs outside of her bedroom and on the staircase, prior to inflicting the mortal wound downstairs. Therefore, according to the People, the sentence of 25 years should run consecutive to the murder charge (TT., October 25, 2012, 21 [R., 149]; 31-32 [R., 159-160]). Defense counsel argued that the burglary and murder were part of a continuing course of criminal conduct, which was formulated prior to Brahney entering the apartment (TT., October 25, 2012, 29-30 [R., 157-158]). Therefore, according to defense counsel, the burglary convictions should run concurrent with the other convictions. Brahney was sentenced, inter alia, as follows: • Count 1 Murder in the Second Degree (intentional murder): 25 years to life • Count 2 Murder in the Second Degree (felony murder): 25 years to life, to run concurrent with count 1 • Count 3 Burglary in the First Degree (Appellant caused physical injury to the victim): 25 years determinate, 5 years post-release supervision, to run concurrent with counts 2 and 4, but consecutive to count 1 • Count 4 Burglary in the First Degree (Appellant used or threatened to use a dangerous instrument): 25 years determinate, 5 years post-release 11 supervision, to run concurrent with counts 2 and 3, but consecutive to count 1 (R., 16-19; TT., October 25, 2012, 34-35 [R., 162-163]). On December 3, 2012, Brahney was subsequently properly re-sentenced as a second felony offender (R., 20-22; TT., December 3, 2012 [R., 167-173]). Mr. Brahney appealed his conviction and sentence to the Appellate Division, Fourth Department (R., CA13-14), which consolidated the appeals (R., CA15). In a Memorandum and Order entered March 20, 2015, the Fourth Department rejected the contention that his sentence on the two counts of Burglary in the First Degree (Penal Law § 140.30[2]-[3]) should run concurrent with the sentence imposed on the count of Murder in the Second Degree (intentional murder) (Penal Law §125.25[1]). The Court stated: “Although the actus reus elements of the burglary counts and the murder count overlap under the facts presented here, we nevertheless conclude that the People ‘establish[ed] the legality of consecutive sentencing by showing that the ‘acts or omissions’ committed by defendant were separate and distinct acts’ . . . . The evidence established that, after defendant entered the apartment through a window that he smashed with a cinder block, he dragged the victim from her bed and down the stairs to the living room, where he killed her. “We agree with out dissenting colleagues that the blood evidence located on the wall of the upstairs hallway and on the stairs establishes that defendant caused physical injury to the victim while she was still upstairs. We note, however, that the photographic evidence demonstrates that there was a small blood smear on the wall of the upstairs hallway and drops of blood on the stairs. By contrast, there was a tremendous amount of blood evidence in the downstairs of the dwelling where the victim died. Furthermore, in a 12 recorded telephone conversation to his mother, defendant stated that ‘he dragged [the victim] down the stairs and murdered her.’ We conclude that the location and amount of blood evidence in the upstairs and in the downstairs of the dwelling confirm this statement. We therefore conclude that the People established that there were separate offenses, i.e., that the burglar was completed while the victim was still upstairs and that the murder occurred downstairs . . . .” [citations omitted] (R., CA7-8). Two Justices (Lindley and Centra, JJ.) dissented. In their view, the consecutive sentences imposed are illegal under the facts of the case. According to the dissent, the burglary was not complete as soon as Brahney entered the dwelling. The People had to establish that, in addition to entering and remaining unlawfully in a dwelling with the intent to commit a crime therein, defendant had to cause physical injury to the victim and used or threated the immediate use of a dangerous instrument. According to the dissent: “At trial, a recorded phone call from defendant while he was in jail to his mother was played to the court, in which defendant stated that he went inside the victim’s residence, dragged her down the stairs and murdered her. A police officer testified at trial that he found the victim with multiple stab wounds in the downstairs of the residence. There were signs of a struggle in the master bedroom upstairs, and the victim had defensive wounds. There was blood ‘all over the place’ downstairs, and there was also some blood on the wall outside the master bedroom, on the landing, on the wall next to the staircase, and on the stairs. The parties stipulated that the forensic analysis showed the victim’s blood on the wall upstairs and on the staircase. The Medical Examiner testified that the victim sustained 38 knife wounds. He did not specify which of the wounds sustained by the victim was fatal, but rather testified that she died as a result of multiple stab wounds to the neck, chest, and back. “The majority concludes that the burglary was completed while the victim was still upstairs, and that she was not murdered until after she was dragged downstairs, and thus that the burglary and murder offenses were committed 13 through separate acts. In our view, we cannot determine that the burglary and murder offenses were separate and distinct because it is possible that the act of causing physical injury to the victim and using the knife was also the act that caused her death. Considering the fact that the victim’s blood was found upstairs an on the staircase, it is apparent that defendant stabbed the victim at least once while they were upstairs, which would complete the burglary offenses. Unlike the majority, however, we conclude that the murder offense may also have occurred through that same act. In other words, the wound or wounds that the victim sustained while upstairs may have ultimately caused her death . . . .” (R., CA 8-10). Brahney’s counsel moved for permission for leave to appeal to the Court of Appeals pursuant to CPL 460.20, and Justice Stephen K. Lindley granted permission (R., CA4). ARGUMENT County Court erred as a matter of law in directing that the sentences for Appellant’s conviction of two counts of Burglary in the First Degree (Penal Law § 140.30[2]-[3]) must run consecutive to the sentence for his conviction of Murder in the Second Degree (intentional murder) (Penal Law § 125.25[1]). The first prong of Penal Law § 70.25(2) was met in this case. Furthermore the People failed to meet their burden of pointing to identifiable facts in the record to support their theory that the burglary and murder were separate and distinct acts. Penal Law § 70.25(2) states, “When 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 14 one of the offenses and also was a material element of the other, the sentences . . . must run concurrently.” People v Laureano (87 NY2d 640 [1996]) clarified the appropriate analysis for determining whether Penal Law § 70.25(2) requires concurrent sentencing. Because both prongs of Penal Law § 70.25(2) refer to the “act or omission,” that is, the “actus reus” that constitutes the offense, 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. In Laureano, where the offenses at issue were first-degree manslaughter and first-degree robbery, the actus reus of the manslaughter count was the act that “caused the death” of the victim, and the actus reus of the robbery count was the act of “forcibly stealing” the victim’s property (Laureano, 87 NY2d at 644-645). As noted most recently by the Court of Appeals in People v Rodriguez (25 NY3d 238 [2015]), “[t]o determine whether consecutive sentences are permitted, a court must first look to the statutory definitions of the crimes at issue” to discern whether the actus reus elements overlap (People v Rodriguez, 25 NY3d at 244 [citations omitted]). Even where the crimes have an actus reus element in common, “the People may yet establish the legality of consecutive sentencing by 15 showing that the ‘acts or omissions’ committed by defendant were separate and distinct acts” (Laureano, 87 NY2d at 643; People v McKnight, 16 NY3d 43, 48 [2010]; People v Ramirez, 89 NY2d 444, 451 [1996]). Conversely, as the Rodriguez Court pointed out, where “the actus reus is a single inseparable act that violates more than one statute, [a] single punishment must be imposed” (People v Rodriguez, 25 NY3d, citing People v Frazier, 16 NY3d 36, 41[2010] [internal quotation marks, citations and emphasis omitted]). The People bear the burden of establishing the legality of consecutive sentencing by “identifying the facts which support their view” that the crimes were committed by separate acts (Laureano, 87 NY2d at 644; McKnight, 16 NY3d at 51). In this case, the Laureano analysis must be applied to both counts of Burglary in the First Degree – count 3 (Penal Law § 140.30[2] – caused physical injury) and count 4 (Penal Law § 140.30[3] – used or threatened use of a dangerous instrument) separately vis-à-vis the count of Murder in the Second Degree (intentional murder) (Penal Law § 125.25[1]). Burglary in the First Degree (Appellant caused physical injury to the victim) (Penal Law § 140.30[2]) The actus reus for Murder in the Second Degree is causing “the death of a person” (Penal Law §125.25[1]). Pursuant to Penal Law § 140.30(2), a person commits Burglary in the First Degree when he knowingly and unlawfully enters a 16 dwelling with intent to commit a crime and “causes physical injury to any person who is not a participant in the crime.” Applying the first-prong of the Laureano analysis to count 3, Appellant respectfully submits in this case that the act of causing physical injury – knifing the victim – is the same act as causing the death of the victim. Therefore, the first prong is met (see People v Roman, 279 AD2d 485 [2nd Dept. 2001], lv. denied 96 NY2d 806 [2001]). In the alternative, under the second prong of the Laureano analysis with respect to count 3, Appellant submits that the actus reus for the first offense (Murder in the Second Degree) constitutes a material element of the second offense (Robbery in the First Degree) therefore concurrent sentences are in order. Again, the “act” that constitutes Murder in the Second Degree is causing “the death of a person” (Penal Law §125.25-1). A person commits Burglary in the First Degree (Penal Law §140.30) when he knowingly and unlawfully enters a dwelling with intent to commit a crime and “causes physical injury to any person who is not a participant in the crime” (Penal Law §140.30[2]). By definition, the act of causing death is subsumed within the element of causing physical injury (Penal Law §10.00[10]) and in this case using a dangerous instrument, to wit, a knife. The actus reus of the burglary count, therefore, was the same as, or subsumed by, the actus reus of the murder count, that is, both offenses were committed through a 17 single act and concurrent sentences were required pursuant to Penal Law §70.25(2). However, as the Laureano Court noted, even where the crimes have an actus reus element in common, “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). In this case, Appellant respectfully submits that the People simply failed to meet their burden of establishing the legality of consecutive sentencing because they failed to identify facts that support their view that the crimes were committed by separate acts. The prosecution argued that the act of the burglary on both counts occurred when Appellant entered the victim’s home and the act of the murder occurred in the downstairs of the apartment where the victim’s body was discovered. However, the People utterly failed to produce concrete evidence to support this theory. Indeed, although there certainly was a lot of blood around the body of the victim when and where she was found (Exhibits 53, 59, 60, 63 [R., 175, 181, 182, 184]) this does not necessarily mean that she was murdered in the downstairs area as opposed to the upstairs area. No evidence was admitted that conclusively demonstrates this assertion. The Chief Medical Examiner could not specify which of the 38 wounds was the fatal wound; rather, he determined that the victim died as a result of multiple stab wounds to the neck, chest and back. Of those identified 18 by the Chief Medical Examiner as wounds that possibly could have been fatal, the People failed to present evidence as to where in the home these potentially fatal wounds were inflicted – the People asserted that the “mortal wound” was inflicted in the downstairs area but no evidence was produced to support this assertion. The People simply failed to meet their burden. Burglary in the First Degree (Appellant used or threatened to use a dangerous instrument) (Penal Law § 140.30[3]) A person is guilty of Murder in the Second Degree (Penal Law § 125.25[1]) when he intentionally causes the death of another person. Pursuant to Penal Law § 140.30(3), a person is guilty of Burglary in the First Degree when he knowingly and unlawfully enters a dwelling with the intent to commit a crime therein, and “uses . . . . the immediate use of a dangerous instrument . . . while in the dwelling . . . .” Under the first prong of analysis, Appellant respectfully submits that, in this circumstance, Brahney entered the victim’s home and used a dangerous instrument to intentionally cause her death. That is, the act of entering the victim’s home and using a knife while in the home is the same act that intentionally caused her death. It simply cannot be otherwise. Even if the Court were to find that the actus reus for each offense is not the same, Appellant respectfully submits that the People again failed to meet their burden of establish the legality of consecutive sentencing by identifying the facts 19 that support their view that the crimes were separate and distinct (Laureano, 87 NY2d at 643-644; People v McKnight, 16 NY3d at 48). Notably – and indeed what the Appellate Division dissenting Justices saw – was the fact that the People’s evidence simply does not reflect their theory that the burglary ended when Brahney entered the victim’s home. No evidence was presented regarding which wound caused the victim’s death; no evidence was presented with respect to where in the home the fatal wounds were inflicted. Thus, there is no evidence that the burglary was completed by Appellant either when he entered the dwelling or used the knife on the victim upstairs. The evidence proffered at trial demonstrates that there were signs of a struggle in the master bedroom – the comforter was pulled off, clothes and shoes were kicked around and there were glass shards on the floor (TT., October 2, 2012, 328 [R., 92]; 331 [R., 93] [Exhibits 58 and 87 – R., 180, 190]). There was blood on the wall and on the chair (TT., October 2, 2012, 398 [R., 117]; Exhibit 57 [R. 179]). There also was blood on the wall outside of the master bedroom (TT., October 2, 2012, 398 [R.,, 117]; R., 33; Exhibit 57 [R., 179]) on the landing, on the wall next to the staircase (TT., October 2, 2012, 331 [R., 93]; 399 [R., 118]; R., 33; Exhibit 55-56 [R., 176-177]) and on the stairs (Exhibit 54 [R., 176]). Thus, as the Appellate Division dissent properly noted, it is very possible that she was stabbed at least once upstairs – a wound that resulted in her death. The murder and the 20 burglary (using an instrument to cause physical injury) could have been one in the same act. Several cases are instructive. People v Anderson (254 AD2d 701 [4th Dept. 1998]), lv. denied 92 NY2d 980 [1998]) is directly on point. In that case, the Fourth Department held that County Court erred in directing that the sentence imposed on the attempted murder in the second degree count run consecutively with the sentences imposed on the burglary in the first degree count. Additionally, People v Larew (11 AD3d 727 [3rd Dept. 2004]) is on point. In that case, defendant was convicted of the crimes of attempted murder in the second degree and burglary in the first degree (four counts) and sentenced as an armed felony offender to 12½ to 25 years in prison upon his attempted murder conviction and 8⅓ to 25 years upon each of his burglary convictions. The sentence imposed upon defendant’s attempted murder conviction was set to run consecutive to the sentences imposed on the burglary counts. The court held that this was improper, reasoning that, “[i]nasmuch as the act of shooting the victim equates with the element of infliction of physical injury upon a nonparticipant in the crime and the use of a dangerous instrument . . . the sentences imposed for defendant’s conviction on those burglary counts should run concurrent with the sentence imposed for the crime of attempted murder in the second degree. The sentences imposed on defendant’s burglary convictions on count one (armed with a deadly 21 weapon) and count four (displaying a firearm) were permissively imposed consecutively to the sentence imposed on the attempted murder conviction” (People v Larew, 11 AD3d 728). Most importantly, the People did not meet their burden of proving otherwise – that these were separate and distinct acts. People v Fulton (257 AD2d 774 [3rd Dept. 1989], lv. denied, 93 NY2d 1018 [1989]) is instructive. In that case, the Third Department determined that consecutive sentences were in order because “the medical proof established that the victim died from asphyxia as a result of having his mouth and nose covered by duct tape, but . . . other serious injuries were also inflicted during the course of the robbery” (People v Fulton, 257 at 775). Here, no medical evidence was offered that proved that the victim died downstairs. To the contrary, the autopsy report and the Medical Examiner’s testimony at trial demonstrate that the victim died of multiple stab wounds to the neck, chest, and back and there was no evidence offered that conclusively demonstrated that the victim was killed downstairs, as opposed to upstairs. Contrary to the People’s argument before the Fourth Department, there simply is no evidence that the murder was committed subsequently to the burglary (cf. People v McCloud 182 AD2d 835 [2nd Dept. 1992], lv. denied 80 NY2d 906 [1992]). Thus, because the evidence does not otherwise demonstrate that the