| People v Green |
| 2010 NY Slip Op 03650 [72 AD3d 1601] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Chazaray A.Green, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered February21, 2007. The judgment convicted defendant, upon a jury verdict, of manslaughter in the seconddegree, criminal possession of a weapon in the second degree and criminal possession of aweapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby directing that the sentence imposed for criminal possession of a weapon in the second degreeshall run concurrently with the sentence imposed for manslaughter in the second degree and asmodified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmanslaughter in the second degree (Penal Law § 125.15 [1]), criminal possession of aweapon in the second degree (§ 265.03 [1] [b]) and criminal possession of a weapon in thethird degree (§ 265.02 [former (4)]). We agree with defendant that the sentence imposedfor criminal possession of a weapon in the second degree must run concurrently with thesentence imposed for manslaughter in the second degree, and we therefore modify the judgmentaccordingly. "Given the element of intent to use the weapon unlawfully against another and thelack of any evidence that defendant intended to use his weapon unlawfully against another apartfrom its use in the shooting, the crimes of criminal possession of a weapon in the second degreeand [manslaughter] must be regarded as a 'single act or omission' " (People v Manor, 38 AD3d 1257,1259 [2007], lv denied 9 NY3d 847 [2007], quoting Penal Law § 70.25 [2]; see People v Hamilton, 4 NY3d654, 657-658 [2005]). The record belies defendant's further contention that County Courtfailed to consider rehabilitation in determining the appropriate sentence to impose. Indeed, therecord establishes that the court considered rehabilitation in "perform[ing] the delicate balancingnecessary to accommodate the public and private interests represented in the criminal process" insentencing a defendant (People v Farrar, 52 NY2d 302, 306 [1981]). The record alsofails to support defendant's contention that, in sentencing defendant, the court considered crimesof which defendant was acquitted (see People v Ealey, 272 AD2d 269, 270 [2000], lvdenied 95 NY2d 865 [2000]). Present—Centra, J.P., Carni, Lindley, Green andGorski, JJ.