| People v Roundtree |
| 2010 NY Slip Op 06045 [75 AD3d 1136] |
| July 9, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent , v Lamar J.Roundtree, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.),rendered July 19, 2006. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree, criminal possession of a weapon in the second degree, and criminal possession ofa weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby directing that the sentences imposed for criminal possession of a weapon in the second degreeand criminal possession of a weapon in the third degree shall run concurrently with the sentenceimposed for murder in the second degree and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]), criminal possession of a weapon inthe second degree (§ 265.03 [former (2)]), and criminal possession of a weapon in thethird degree (§ 265.02 [former (4)]). Defendant failed to preserve for our review hiscontention that the conviction is not supported by legally sufficient evidence inasmuch as hefailed to renew his motion for a trial order of dismissal after presenting evidence (see Peoplev Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]; People v Pearson, 26 AD3d 783[2006], lv denied 6 NY3d 851 [2006]). In any event, we reject that contention (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Moreover, viewing the evidence inlight of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally Bleakley, 69NY2d at 495). "Defendant's further contention concerning the legal sufficiency of the evidencebefore the grand jury 'is not reviewable on an appeal from an ensuing judgment based uponlegally sufficient trial evidence' " (People v Lee, 56 AD3d 1250, 1251 [2008], lv denied 12NY3d 818 [2009]; see CPL 210.30 [6]).
Contrary to the contention of defendant, he was not denied effective assistance of counsel(see generally People v Baldi, 54 NY2d 137, 147 [1981]). In view of our determinationthat the evidence is legally sufficient to support the conviction, defendant was not deniedeffective assistance of counsel based on defense counsel's failure to renew the motion for a trialorder of dismissal inasmuch as he failed to show that the motion, "if made, would have beensuccessful" (People v Marcial, 41AD3d 1308, 1308 [2007], lv denied 9 NY3d 878 [2007]; see People v Bassett, 55 AD3d1434, 1437-1438 [2008], lv denied 11 NY3d 922 [2009]). With respect to theremaining alleged shortcomings of defense counsel, we conclude that defendant has failed " 'todemonstrate the absence of strategic or other legitimate explanations' for [those] allegedshortcomings" (People v Benevento, 91 NY2d 708, 712 [1998]).
We agree with defendant, however, that the sentences imposed for criminal possession of aweapon in the second degree and criminal possession of a weapon in the third degree must runconcurrently with the sentence imposed for murder in the second degree, and we thereforemodify the judgment accordingly. Pursuant to Penal Law § 70.25 (2), "[w]hen more thanone sentence of imprisonment is imposed on a person for two or more offenses committedthrough a single act or omission, or through an act or omission which in itself constituted one ofthe offenses and also was a material element of the other," the sentences, with an exception notrelevant here, must run concurrently. Based on the evidence presented at trial, and as correctlyconceded by the People, "the court has no discretion; concurrent sentences are mandated" (People v Hamilton, 4 NY3d 654,658 [2005]).
The sentence imposed for murder in the second degree is not unduly harsh or severe. Wehave considered defendant's remaining contentions and conclude that they are lacking in merit.Present—Scudder, P.J., Peradotto, Carni, Lindley and Sconiers, JJ.