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CONSECUTIVE SENTENCES SHOULD NOT HAVE BEEN IMPOSED RE: CERTAIN WEAPONS-POSSESSION COUNTS (THIRD DEPT).

​The Third Department concluded that the sentences on certain weapons-possession counts should not have been imposed consecutively:

The conviction on count 2 stemmed from defendant’s possession and intent to use an operable, loaded .357 caliber revolver in violation of Penal Law § 265.03 (1) (b) and his conviction on count 3 was based upon his mere unlawful possession of that same firearm in violation of Penal Law § 265.03 (3), regardless of any intent to use the weapon. Insofar as defendant’s possession of the weapon was a material element of both weapon possession counts, was part of the same act resulting in the murder, and there was no evidence that defendant possessed the weapon with purposes unrelated to his intent to shoot the victim, the sentence imposed on count 3 is modified to run concurrently with the sentence imposed on count 2 … .

County Court also erred in running the sentences on counts 1 and 3 consecutively to one another. “[W]here a defendant is charged with criminal possession of a weapon pursuant to Penal Law § 265.03 (3), as well as a crime involving use of that weapon . . . consecutive sentencing” is allowed “so long as the defendant knowingly unlawfully possesses a loaded firearm before forming the intent to cause a crime with that weapon” … . Here, however, the People’s theory of the case, which the jury ultimately believed, was that defendant had already formed the specific intent to kill the victim when he procured the revolver … . People v Graham, 2023 NY Slip Op 01819, Third Dept 4-6-23

Practice Point: Here consecutive sentences should not have been imposed re: certain weapons-possession counts.

 

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