People v. Reyes , 658 N.Y.S.2d 353 ( 1997 )

239 A.D.2d 524 (1997) 658 N.Y.S.2d 353

The People of the State of New York, Respondent,
v.
Franklin Reyes, Appellant

Appellate Division of the Supreme Court of the State of New York, Second Department.

May 19, 1997

Sullivan, J. P., Santucci, Friedmann and McGinity, JJ., concur.

Ordered that the judgment is modified, on the law, by deleting the provision thereof which directed that the term of imprisonment imposed on the conviction for criminal possession of a weapon in the second degree run consecutively with the terms of imprisonment imposed on the convictions for murder in the second degree and assault in the first degree, and substituting therefor a provision directing that the term of imprisonment imposed on the conviction for criminal possession of a weapon in the second degree shall run concurrently with the terms of imprisonment imposed on the other convictions; as so modified, the judgment is affirmed.

On appeal, the defendant contends that the People failed to establish his intent to commit the underlying felony of attempted robbery. Initially, we note that the issue of legal sufficiency was not preserved for appellate review (see, CPL 470.05 [2]). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant was an active participant in the crimes committed (see, Penal Law § 20.00; see also, People v Benzinger, 36 N.Y.2d 29, 34). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant's accomplices fired several gunshots, killing George Poulopoulos and injuring Jesus Jiminez and Fernando Jiminez. The sentencing court did not improvidently exercise its discretion in imposing consecutive sentences on the convictions for assault in the first degree and murder in the second degree, as each firing of the gun constituted a separate act (see, Penal Law § 70.25 [2]; People v Brown, 80 N.Y.2d 361; People v Sumpter, 203 AD2d 605). However, as correctly conceded by the People, the sentencing court erred in ordering the defendant's sentence for criminal possession of a weapon in the second degree to run consecutively to his sentences on the convictions for assault in the first degree and murder in the second degree, since these convictions arose out of a single incident (see, People v Velez, 206 AD2d 554).

The sentences imposed were not excessive (see, People v Suitte, 90 AD2d 80).

The defendant's remaining contention is without merit.