People v. Salcedo

• Decision Date: 18 December 1997
• Citation: 245 A.D.2d 163,666 N.Y.S.2d 174
• Parties: , 1997 N.Y. Slip Op. 10,929 The PEOPLE of the State of New York, Respondent, v. Dulys SALCEDO, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 174

666 N.Y.S.2d 174

245 A.D.2d 163, 1997 N.Y. Slip Op. 10,929

The PEOPLE of the State of New York, Respondent, v. Dulys SALCEDO, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Dec. 18, 1997.

Melissa Goldstein, for respondent.

Jonathan Svetkey, for defendant-appellant and defendant-appellant pro se.

Before MILONAS, J.P., and RUBIN, TOM, ANDRIAS and COLABELLA, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Richard Lowe, III, J.), rendered February 15, 1994, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second and third degrees, and sentencing him to a consecutive terms of 20 years to life and 5 to 15 years and a concurrent term of 2 1/3 to 7 years, unanimously affirmed.

Defendant's vague objection failed to preserve his present challenges to the court's instruction concerning his failure to testify (see, People v. Nuccie, 57 N.Y.2d 818, 455 N.Y.S.2d 593, 441 N.E.2d 1111), and we decline to review them in the interest of justice. Were we to review them, we would find that the court's minor expansion on the statutory language does not warrant reversal (see, People v. Santiago, 194 A.D.2d 428, 599 N.Y.S.2d 959, lv. denied 82 N.Y.2d 759, 603 N.Y.S.2d 1001, 624 N.E.2d 187).

The court lawfully sentenced defendant to consecutive terms for murder and second-degree weapon possession. The evidence fails to support defendant's position that those convictions both arose out of a single act--the shooting of the victim. Rather, the evidence established defendant's possession of the revolver with the intent to use it unlawfully at a point temporally and spatially distinct from his ultimate use of the revolver to kill the victim (see, People v. Brown, 80 N.Y.2d 361, 590 N.Y.S.2d 422, 604 N.E.2d 1353; People v. Felix, 232 A.D.2d 228, 648 N.Y.S.2d 87, lv. denied 232 A.D.2d 228, 648 N.Y.S.2d 87).

We perceive no abuse of sentencing discretion. We have considered the additional arguments raised by defendant in his pro se supplemental brief and find them to be without merit.