People v. Murphy , 115 A.D.2d 249 ( 1985 )

Judgment unanimously modified, on the law and facts, to provide that the consecutive sentence imposed be served concurrently and otherwise, judgment affirmed. Memorandum: Defendant was convicted of murder in the second degree, attempted robbery in the first degree, and other crimes arising out of an attempted armed robbery of a grocery store in the City of Buffalo. When the store clerk questioned defendant’s demands to open the cash register, defendant shot and killed him. Defendant then pointed the gun at the slain clerk’s girlfriend, who was also present in the store, and ordered her to open the cash register. When she claimed she did not know how, defendant left. The two convictions for criminal possession of a weapon in the second degree (Penal Law § 265.03) were based upon defendant’s intent to use a loaded firearm against not only the store clerk, but also the clerk’s girlfriend. The court imposed consecutive sentences on defendant’s second weapon conviction. On appeal, defendant asserts that the sentence was improper because his actions against the clerk and girlfriend were but a single act for which he could not be sentenced consecutively. We agree.

Since at no time during the attempted robbery did the gun leave defendant’s hand, defendant’s possession of the gun was a single and continuous act motivated by a continuing intent to commit larceny. Inasmuch as the People are unable to point to any testimony or evidence which would support the view that the offenses of which defendant stands convicted involved disparate or separate acts, the sentences must run concurrently (People v Catone, 65 NY2d 1003; People v Jefferies, 30 AD2d 1032; Matter of Zovick v Eaton, 259 App Div 585). We have reviewed the remaining issues raised by defendant and find them lacking in merit. (Appeal from judgment of Supreme Court, Erie County, Easier, J.—manslaughter, first degree, and other offenses.) Present—Callahan, J. P., Denman, Boomer, Green and Pine, JJ.