You are here: / / SENTENCES MUST RUN CONCURRENTLY, NOT CONSECUTIVELY; ERROR NEED NOT BE PRESERVED...
,

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

 

You might also like
COUNTY DID NOT DEMONSTRATE THE INSTALLATION OF A GUARD RAIL WAS PRECEDED BY A DELIBERATIVE DECISION-MAKING PROCESS, SUMMARY JUDGMENT BASED UPON QUALIFIED IMMUNITY SHOULD NOT HAVE BEEN GRANTED 4TH DEPT.
WATER ON THE BATHROOM FLOOR NEAR THE SHOWER WAS NECESSARILY INCIDENTAL TO THE USE OF THE SHOWER AND WAS NOT AN ACTIONABLE CONDITION IN THIS SLIP AND FALL CASE (FOURTH DEPT).
THE MAJORITY CONCLUDED THE HEARSAY ALLEGATIONS IN THE SEARCH WARRANT APPLICATION PROVIDED PROBABLE CAUSE TO SEARCH TWO DIFFERENT RESIDENCES; THE TWO-JUSTICE DISSENT ARGUED THE APPLICATION DID NOT PROVIDE PROBABLE CAUSE TO SEARCH ONE OF THE TWO RESIDENCES, I.E., THERE WERE NO DETAILS DESCRIBING THE NARCOTICS THE INFORMANT OBSERVED IN THE RESIDENCE AND NO INDICATION WHEN THE OBSERVATON WAS MADE (FOURTH DEPT).
PLAINTIFF INJURED HIS BACK LIFTING A HEAVY METAL STRUCTURE A FEW INCHES TO ALLOW ROOFING MATERIAL TO BE PUT DOWN UNDERNEATH IT; THE INJURY WAS NOT THE RESULT OF AN ELEVATION-RELATED HAZARD COVERED BY LABOR LAW 240 (1) (FOURTH DEPT).
THE SIX ‘LURING A CHILD’ CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).
Fall Into a Three-to-Four-Foot-Deep Hole Is Not an Elevation-Related Event Under Labor Law 240(1)
THE RECORDED CONVERSATION BETWEEN THE 15-YEAR-OLD DEFENDANT AND HIS FATHER IN THE POLICE INTERVIEW ROOM IS PROTECTED BY PARENT-CHILD PRIVILEGE AND SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).
TEMPORARY ROAD WORK TRAFFIC CONTROL MAY HAVE FURNISHED THE CONDITION FOR THE ACCIDENT BUT WAS NOT THE PROXIMATE CAUSE OF THE DRIVER STRIKING THE PEDESTRIAN PLAINTIFF, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED TO THE ROAD WORK DEFENDANTS (FOURTH DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

QUESTIONS OF FACT ABOUT THE EXISTENCE OF A DANGEROUS CONDITION, WHETHER THE... MOTHER’S PETITION FOR AN UPWARD MODIFICATION OF FATHER’S CHILD SUPPORT...