McCullough v. Bennett, Docket No. 04-0081-pr (2d Cir. June 24, 2005) (Meskill, Newman, Cabranes) (Op. by Newman): The question presented in this case is whether, as Judge Newman succinctly puts it, “convictions and consecutive sentences on two counts of criminal possession of a weapon [in the second degree under N.Y. Penal Law § 265.03] violate petitioner’s double jeopardy rights when the two counts reflected shootings at two victims getting out of the same vehicle in rapid succession.” Op. at 1-2. CPW-2nd punishes anyone who “possesses a loaded firearm . . . with intent to use the same unlawfully against another.” The evidence at trial showed that McCullough approached a parked car with a loaded gun and fired at Person A when A fled the vehicle from the driver side of the car. McCullough then went to the passenger side, threatened Person B (another occupant of the car), pulled B out of the car, and fired in B’s direction as B ran off.
The Court finds no Double Jeopardy violation, reasoning that:
(1) Under the Double Jeopardy Clause, when two separate acts allegedly violate the same statute, the governing question is simply one of legislative intent: Did the legislature in enacting the law intend to punish a continuous offense or distinct acts? Op. at 4, citing Blockburger, 284 U.S. 299, 302-303 (1932). If the former, then “there can be but one penalty,” but if the latter, “then each act is punishable separately.” Id.
(2) The New York Court of Appeals has construed CPW-2nd as permitting multiple sentences for successive shootings, so long as the fact-finder determines that the defendant had distinct “intents” in performing the successive acts. As it explained in People v. Okafore, 72 N.Y.2d 81, 88-89 (1988), “Inasmuch as two criminal intents are discernible, constituting discrete culpable events and not a single continuing one, each could be separtely prosecuted.” Thus, if the evidence shows that “the original unlawful intent [(present when the defendant first fired the gun)] is abandoned and subsequently a new intent is formed to use the weapon against others during the period of possession, more than one crime is committed.” Id.
(3) The critical question thus becomes this: “Did the defendant have one continuous intent to harm one or more people, or an intent to harm one person that ended followed by a new intent to harm another person?” Op. at 10. And in this case, the “issue of intent was put to the jury, and the jury found that McCullough had the requisite intent to commit two weapons possession offenses.” Id. Therefore, the consecutive sentences that McCullough received for these two offenses do not violate the Double Jeopardy clause.
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