“Separate-and-Distinct-Acts” Re-Defined: Consecutive Sentencing Limited to Facts Admitted at Plea
A Commentary on People v. Sabb, 238 A.D.3d 1212 (3d Dep’t 2025)

1. Introduction

People v. Sabb arises from a 2021 Albany drive-by shooting that left one victim dead and four others wounded. Jhajuan Sabb, the back-seat shooter, was indicted on seven violent-felony counts. He eventually accepted a plea bargain, pleading guilty (as a second violent felony offender) to:

• Manslaughter in the First Degree (a lesser-included offense to second-degree murder); and
• Attempted Assault in the First Degree (one of the original counts).

The negotiated sentence was 25 years + 5 PRS for manslaughter and 10 years + 5 PRS for attempted assault, to run consecutively. On appeal, Sabb claimed that consecutive sentences were illegal because nothing in the plea record established that the homicide and the attempted assault stemmed from “separate and distinct” trigger pulls.

2. Summary of the Judgment

The Appellate Division, Third Department (majority opinion by Fisher, J.) agreed with Sabb and held:

• The People failed to carry their burden of proving entitlement to consecutive sentences.
• When a defendant pleads to a lesser-included count, the court may rely only on (a) the allegations in that specific count of the indictment and (b) facts admitted during the plea allocution; statements in the Presentence Investigation Report (PSI) are off-limits.
• Because the People did not ask to vacate the plea, the appropriate remedy is to modify the judgment so that the two sentences run concurrently.
• All other claims were barred by a valid appeal waiver.

Presiding Justice Egan (joined by Mackey, J.) dissented in part, arguing that the PSI showed 16 shots fired, satisfying the “separate act” requirement, and that, if illegality existed, the plea should be vacated to restore the parties to the status quo.

3. Analysis

3.1 Precedents Cited and Their Influence

• People v. Laureano, 87 N.Y.2d 640 (1996) – Cornerstone precedent limiting reliance to plea-admitted facts when imposing consecutive sentences after a plea to a lesser-included offense. Sabb extends this logic by expressly excluding PSI contents.
• People v. Mangarillo, 152 A.D.3d 1061 (3d Dep’t 2017) – First held that PSIs cannot supply missing facts for consecutive sentencing. Sabb re-affirms and strengthens Mangarillo, overruling any conflicting Third Department dicta.
• People v. Banks, 181 A.D.3d 973 (3d Dep’t 2020) – Formulated the “separate and distinct trigger pull” test. Sabb applies Banks to a plea context with sparse allocution.
• People v. Moon, 119 A.D.3d 1293 (3d Dep’t 2014) & People v. McKnight, 16 N.Y.3d 43 (2010) – Both allowed consecutive sentences after trial records established multiple shots. Sabb distinguishes them: here there was no trial record.
• People v. Farrar, 52 N.Y.2d 302 (1981) – Governs whether the People may withdraw consent when a negotiated sentence must be reduced. The majority read Farrar narrowly; the dissent relied on it to argue for vacatur.

3.2 The Court’s Legal Reasoning

1. Statutory foundation – Penal Law §70.25(2) permits consecutive sentencing only if (i) the statutory elements do not overlap or (ii) the acts are “separate and distinct.” Because manslaughter-1 and attempted assault-1 both derive from “causing serious physical injury with a deadly weapon,” their elements overlapped; thus only prong (ii) was available.
2. Burden of proof – The People bear the burden to justify consecutive sentences. They may meet it by the indictment allegations and plea colloquy when guilty pleas are involved (Light, Laureano).
3. Scope of admissible facts – When the defendant pleads to a lesser-included offense, the prosecutor cannot rely on factual allegations originally pleaded in the superseded higher count, nor on extra-record sources like the PSI. Sabb makes this an unambiguous rule.
4. Application to record – The indictment counts to which Sabb pleaded gave only date, time, and location; the allocution featured terse yes/no responses with no mention of multiple shots. Therefore, no admissible fact proved two independent bullet strikes.
5. Remedial choice – Citing Mangarillo and Leabo, the majority observed that the default remedy, when the People remain silent, is to modify the sentence to concurrent terms. A request for vacatur triggers Farrar balancing; silence forfeits it.

3.3 Potential Impact on New York Criminal Practice

• Prosecutorial practice – Prosecutors must now ensure that plea allocutions unambiguously establish multiple distinct acts if they wish to preserve consecutive sentences when a defendant pleads to lesser-included counts.
• Defense strategy – Defense counsel can leverage the decision by limiting factual admissions and by objecting to any allocution questions that might establish separate acts, thereby setting up an appeal as in Sabb.
• Role of PSIs – Sabb diminishes the sentencing significance of PSIs for consecutive/concurrent determinations in plea cases, splitting with views expressed by some First and Second Department panels. Future Court of Appeals review is likely.
• Plea-vacatur dynamics – Unless the prosecutor expressly requests vacatur, appellate courts in the Third Department will simply convert sentences to run concurrently. This incentivizes prosecutors to address vacatur affirmatively in their briefs.
• Uniformity concerns – Sabb exacerbates an inter-departmental split. The dissent invoked Rivera (1st Dep’t) and Holmes (2d Dep’t), where PSI facts sustained consecutive terms. Practitioners should anticipate forum shopping and a possible grant of leave to resolve the discord.

4. Complex Concepts Simplified

• Consecutive vs. Concurrent Sentences: Consecutive sentences are served one after the other; concurrent sentences are served simultaneously. Consecutive time lengthens incarceration and is tightly regulated by Penal Law §70.25.
• Separate and Distinct Acts: The legal test asking whether each crime stems from an independent physical act (e.g., a different “trigger pull”). If not, sentences must run concurrently.
• Lesser-Included Offense Plea: A defendant admits guilt to a charge that is a constituent part of the original, more serious count (e.g., manslaughter as a lesser-included of murder). Facts from the higher charge cannot automatically carry over.
• Presentence Investigation Report (PSI): A confidential report prepared by probation that details the offense, defendant’s history, and victim impact for the court’s sentencing consideration. Sabb holds PSI facts cannot supply missing elements for consecutive sentencing legality.
• Vacatur of Plea vs. Sentence Modification: Vacatur nullifies the plea; parties return to pre-plea status. Sentence modification keeps the conviction intact but alters the punishment. Sabb opts for modification absent a prosecutorial vacatur request.

5. Conclusion

People v. Sabb crystallises a stringent evidentiary rule: when a defendant pleads to lesser-included offenses, only facts formally admitted at the plea (or contained in the specific counts pleaded to) may justify consecutive sentences. Presentence reports, police files, or un-allocuted facts are insufficient. The decision both safeguards defendants from unforeseen sentence enhancements and places a premium on meticulous allocution drafting by prosecutors and judges. Unless the prosecution timely seeks to undo the plea, the remedy for an illegal consecutive sentence in the Third Department will now be an automatic conversion to concurrent terms. Given the intra-departmental split highlighted by the dissent, Sabb is poised either for Court of Appeals scrutiny or for careful navigation by practitioners statewide.