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SENTENCES MUST RUN CONCURRENTLY, NOT CONSECUTIVELY; ERROR NEED NOT BE PRESERVED (FOURTH DEPT).

The Fourth Department determined defendant’s sentences should run concurrently, not consecutively, noting that preservation of the error was not required:

… [T]he sentence is illegal insofar as County Court directed that the sentences imposed on the two counts charging criminal possession of a weapon in the second degree run consecutively to the sentence imposed on the count charging assault in the second degree. We note that defendant’s contention does not require preservation … . The People had the burden of establishing that consecutive sentences were legal, i.e., that the crimes were committed through separate acts or omissions (… see generally Penal Law § 70.25 [2]), and they failed to meet that burden. With respect to the count charging criminal possession of a weapon in the second degree under Penal Law § 265.03 (1) (b), “the People neither alleged nor proved that defendant’s possession [of the gun] was marked by an unlawful intent separate and distinct from his intent to shoot the victim[]” … . With respect to the count charging criminal possession of a weapon in the second degree under Penal Law § 265.03 (3), there was no evidence presented at trial that defendant’s act of possessing a loaded firearm “was separate and distinct from” his act of shooting the victim … . People v Tripp, 2019 NY Slip Op 08339, Second Dept 11-15-19

 

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