| People v Bullip |
| 2009 NY Slip Op 01129 [59 AD3d 561] |
| February 10, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v Keith Bullip, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, andMorgan J. Dennehy of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Garnett, J.),rendered December 5, 2006, convicting him of robbery in the third degree and attempted assaultin the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the imposition of consecutive sentences was notillegal (see Penal Law § 70.25 [2]; People v Eddie, 87 NY2d 640 [1996];People v Everette, 277 AD2d 250 [2000]). The People met their burden of establishingthat the act constituting the offense of attempted assault in the second degree is not a materialelement of the offense of robbery in the third degree as there is no overlap in the statutorydefinitions of those two offenses (see Penal Law §§ 110.00, 120.05 [2];§ 160.05; People v Day, 73 NY2d 208, 211 [1989]; People v Catone, 65NY2d 1003, 1005 [1985]; People v Everette, 277 AD2d 250 [2000]; People vScott, 197 AD2d 646, 647 [1993]; see also People v Eddo, 55 AD3d 922 [2008]). The commission ofan act constituting attempted assault in the second degree (see Penal Law §§110.00, 120.05 [2]) is not a material element of robbery in the third degree (see PenalLaw § 160.05) for restrictive sentencing purposes since, by comparing the two statutoryprovisions, the definition of robbery in the third degree does not provide that an attemptedassault is a necessary component in the "legislative classification and definitional sense"(People v Day, 73 NY2d at 211; see People v Catone, 65 NY2d 1003, 1005[1985]).
In addition, the People properly relied upon the defendant's factual allocution and the counts[*2]as alleged in the superior court information to demonstratethat the offenses involved two separate and distinct acts (see People v Eddie, 87 NY2d640, 644 [1996]; People v Day, 73 NY2d at 212; see also People ex rel. Maurer vJackson, 2 NY2d 259, 264-266 [1957]; People v Blount, 47 AD3d 825 [2008]; cf. People vUnderwood, 52 NY2d 882, 883 [1981]). Skelos, J.P., Dillon, Angiolillo and Eng, JJ.,concur.