People v. Baker

• Decision Date: 27 April 2012
• Citation: 2012 N.Y. Slip Op. 03337,94 A.D.3d 1553,942 N.Y.S.2d 918
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeffrey BAKER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03337

94 A.D.3d 1553

942 N.Y.S.2d 918

The PEOPLE of the State of New York, Respondent,

v.Jeffrey BAKER, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

April 27, 2012.

Appeal from a judgment of the Wyoming County Court (Mark H. Dadd, J.), rendered January 19, 2010. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the third degree (three counts).Norman P. Effman, Public Defender, Warsaw (Gregory A. Kilburn of Counsel), for defendant-appellant.

Donald G. O'Geen, District Attorney, Warsaw (Marshall A. Kelly of Counsel), for respondent.

MEMORANDUM:

On appeal from a judgment convicting him, upon a jury verdict, of three counts of criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ), defendant contends that County Court erred in directing that the sentences imposed on counts two and three shall run concurrently with each other but consecutively to the sentence imposed on count one. We agree. Defendant was convicted of possessing three weapons, i.e., a rifle (count one) and two knives (counts two and three), on a specified date in Village Park in Warsaw with the intent to use those weapons unlawfully against two of his siblings. Because “defendant possessed [the weapons] at the same place and time, with the intent to use them unlawfully against the same victim[s,] ... the offenses arose from the same act, [and thus] concurrent sentences should have been imposed” ( People v. Cleveland, 236 A.D.2d 802, 653 N.Y.S.2d 472, lv. denied 89 N.Y.2d 1033, 659 N.Y.S.2d 864, 681 N.E.2d 1311; see People v. Williams, 144 A.D.2d 1012, 1012, 534 N.Y.S.2d 292, lv. denied 73 N.Y.2d 984, 540 N.Y.S.2d 1018, 538 N.E.2d 370; see also People v. Taylor, 197 A.D.2d 858, 859, 602 N.Y.S.2d 469). We therefore modify the judgment accordingly.

We reject defendant's contention that the court erred in failing to address the constitutionality of his 1997 conviction of driving while intoxicated, which conviction elevated the crimes with which he was charged from criminal possession of a weapon in the fourth degree to criminal possession of a weapon in the third degree. It is well settled that, where there are procedural vehicles for challenging the constitutionality of prior guilty pleas in the courts in which those guilty pleas were entered, a defendant's right to due process is not violated in a subsequent case by the lack of a procedural vehicle for challenging a prior conviction resulting from a guilty plea that serves as the basis for an...