On August 11, 1988, at approximately 8:00 p.m., Nigel G and Terence O were working at a game booth at Coney Island amusement park. Suddenly, two individuals identified by G as Rodolfo G and an accomplice, Lonnie Jones, approached him. G also testified that G stuck a hard object in his back and Lonnie J demanded money and jewelry from him. G did not comply. Terence O moved to the back of the booth, whereupon Lonnie J punched G in the face. Next, G turned toward Lonnie J and G shot G in the back. Both perpetrators then fled without making additional efforts to steal property.
Rodolfo G was convicted after a jury trial of attempted murder in the second degree, attempted robbery in the first degree and criminal possession of a weapon in the second degree. Came October 30, 1989, Rodolfo G was sentenced a second violent felony offender to ten to twenty years imprisonment for the attempted murder and five to ten years for the attempted robbery, to run consecutively to each other. G was sentenced to five to ten years on the weapons possession count to run concurrently with the other sentences.
Upon appeal to the Appellate Division, Second Department, of which G’s conviction was affirmed, he had raised four claims of which one of it was that the sentence was excessive. G’s application for leave to appeal to the Court of Appeals was denied. There were various appeals moved by G but it all seems to be futile since all were denied by their respective divisions. On January 28, 2000, Grey once moved to set aside his sentence on the ground that the court improperly sentenced him to consecutive sentences for the attempted murder and attempted robbery convictions. G subsequently withdrew that motion.
A Lawyer also noted that on June 14, 2010, G moved again to set aside his sentence, claiming ineffective assistance of counsel because counsel was unprepared to represent him at sentencing. G’s motion was denied on November 10, 2010.
Sources told a reporter that 20 years after conviction, Rodolfo G presses the claim, withdrawn in 2000 and denied on procedural grounds in 2001 that concurrent sentences were required because elements of the crimes for which he was convicted overlapped. G argued that the same act, namely the shooting, constituted the elements of causing serious physical injury for both attempted robbery and was the corpus of physical injury to the victim. G further claimed that neither of the offenses of which he was convicted constituted a legal component of the other offense and that the imposition of consecutive sentences was illegal because the prosecution did not meet its burden of demonstrating that the attempted robbery and attempted murder constituted two separate and distinct acts.
The Supreme Court of New York upheld the conclusion of the trial court in finding that the shot was a separate act and that the legal conclusion was not wrong. The higher court held that if separate and distinct acts were committed, and they violated more than one section of the Penal Law, punishment for each of them would be proper although they arose out of a single transaction. The Court also held that it was possible that to say that there were separate acts. The attempted robbery was committed when G, assisted by an accomplice actually present, attempted to take property from the person of another. The assault consisted of Grey’s act of immediately thereafter firing a shot at G with intent to kill. The Supreme Court contended that there was no completed robbery in G’s case since no property was taken. However, the attempt to rob the victim failed and was over before the shot was fired. G and his accomplice demanded property from the victim, but G did not surrender to the demands. The Court found it reasonable to conclude that on the facts that the attempt to rob the victim had ended and that Grey and his accomplice abandoned their original intention to take G’s and O’s jewelry and formed a new intent, that is, to punish them and prevent them from calling the police.
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