People v. Handley

• Decision Date: 05 February 1993
• Parties: PEOPLE of the State of New York, Respondent, v. David HANDLEY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 627

593 N.Y.S.2d 627

190 A.D.2d 1001

PEOPLE of the State of New York, Respondent, v. David HANDLEY, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Feb. 5, 1993.

Linda S. Reynolds by K. Rosso-McLaughlin, Buffalo, for appellant.

Kevin M. Dillon by J. Michael Marion, Buffalo, for respondent.

Before DENMAN, P.J., and PINE, BALIO, FALLON and DOERR, JJ.

MEMORANDUM.

Defendant argues that the court erred in ordering consecutive rather than concurrent sentences on his attempted murder and criminal possession of a weapon convictions. We agree. There was no proof that defendant's possession of the gun with the intent to use it unlawfully against another was an act distinct from the act of attempted murder and thus the sentences must run concurrently (Penal Law § 70.25[2]; see, People v. Williams, 144 A.D.2d 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; People v. Murphy, 115 A.D.2d 249, 496 N.Y.S.2d 168, lv. denied 67 N.Y.2d 887, 501 N.Y.S.2d 1039, 492 N.E.2d 1246; see generally, People v. Day, 73 N.Y.2d 208, 210-211, 538 N.Y.S.2d 785, 535 N.E.2d 1325).

Defendant's arguments regarding the prosecutor's cross-examination of his alibi witnesses and certain identification testimony are unpreserved for our review and we decline to reach them in the interest of justice. We have examined defendant's remaining arguments and find them to be lacking in merit.

Judgment unanimously modified on the law and as modified affirmed.