You are here: / / NO EVIDENCE THREE WEAPONS IN A SAFE WERE POSSESSED BY THREE SEPARATE ACTS,...
,

NO EVIDENCE THREE WEAPONS IN A SAFE WERE POSSESSED BY THREE SEPARATE ACTS, SENTENCES SHOULD HAVE BEEN CONCURRENT, DECISIONS TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).

The Second Department determined there was no indication the three weapons in a safe were possessed by three separate acts. The sentences therefore should have been concurrent:

… [T]he defendant’s convictions of criminal possession of a weapon in the third degree … were based upon his act of constructively possessing three guns in a safe on December 2, 2009 … . Since these convictions were based upon the defendant’s constructive possession of guns in the same location at the same time, and there was no proof of any separate act by the defendant which constituted possession of one of the guns, as opposed to either of the other two guns, the convictions were based upon the same act, and the sentencing court was required to impose concurrent sentences … . … [T]he mere fact that the defendant possessed three guns does not prove three separate acts of possession, and, to the extent that our decisions in People v Horn (196 AD2d 886) and People v Negron (184 AD2d 532, 533) can be read to so hold, those cases should no longer be followed. In an analogous context, the Court of Appeals held, to the contrary, that a sentencing court was not authorized to impose consecutive sentences on a defendant’s convictions of three counts of possessing a sexual performance by a child, despite the defendant’s possession of separate images depicting child pornography, because the People failed to allege or adduce facts demonstrating separate acts of downloading the digital images (see People v Dean, 8 NY3d at 930-931). Similarly, possession of three guns without further proof of separate and distinct acts of possession cannot support consecutive sentences for three counts of criminal possession of a weapon in the third degree … . People v Smith, 2018 NY Slip Op 08695, Second Dept 12-19-18

SENTENCING

You might also like
PLAINTIFF DID NOT HAVE TO PROVE THE EXISTENCE OF A RETAINER AGREEMENT TO DEMONSTRATE AN ATTORNEY-CLIENT RELATIONSHIP WITH DEFENDANTS IN THIS LEGAL MALPRACTICE ACTION (SECOND DEPT).
Instructions In Will Re: Payment of Estate Taxes Properly Followed
LATE NOTICE OF CLAIM PROPERLY ALLOWED DESPITE ABSENCE OF EXCUSE.
19 YEAR OLD NOTICE OF CLAIM WAS NOT SUFFICIENT WRITTEN NOTICE OF SIDEWALK DEFECT.
THE UNION’S CLAIM THAT THE COUNTY EMPLOYEE, A SEASONAL EMPLOYEE, SHOULD BE CLASSIFIED AS FULL-TIME BECAUSE HE WORKED 40 HOURS-A-WEEK WAS NOT ARBITRABLE BECAUSE CIVIL SERVICE LAW SECTION 22 PROVIDES THAT RECLASSIFICATION OF A CIVIL SERVICE POSITION CAN ONLY BE DONE BY THE MUNICIPAL CIVIL SERVICE COMMISSION (SECOND DEPT).
COMPLAINT NAMING DECEDENT, RATHER THAN DECEDENT’S REPRESENTATIVE, AS A DEFENDANT WAS A NULLITY; THE DEFECT COULD NOT BE REMEDIED BY AMENDING THE COMPLAINT.
FALL FROM A SCAFFOLD DID NOT WARRANT SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF DID NOT DEMONSTRATE THE FAILURE TO PROVIDE PROPER PROTECTION.
THE BANK FAILED TO PROVE STANDING TO FORECLOSE BECAUSE THE NECESSARY BUSINESS RECORDS WERE NOT ATTACHED TO THE FOUNDATIONAL AFFIDAVITS; HOWEVER, THE DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE THEY FAILED TO AFFIRMATIVELY PROVE THE BANK DID NOT HAVE STANDING (SECOND 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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

FATHER SHOULD NOT HAVE BEEN PRECLUDED FROM BRINGING FUTURE PARENTAL ACCESS PETITIONS... THE PETITION SEEKING LEAVE TO COMMENCE AN ACTION AGAINST THE MOTOR VEHICLE ACCIDENT...