| People v Ross |
| 2018 NY Slip Op 05610 [164 AD3d 528] |
| August 1, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Allen Ross, Appellant. |
Paul Skip Laisure, New York, NY (Samuel Brown and Leila Hull of counsel), forappellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Keith Dolan, and Sullivan& Cromwell LLP [James Concannon], of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Neil Firetog,J.), rendered January 14, 2016, convicting him of murder in the second degree and criminalpossession of a weapon in the second degree, upon a jury verdict, and sentencing him to anindeterminate term of 20 years to life imprisonment on his conviction of murder in the seconddegree and a determinate term of imprisonment of 10 years, plus 5 years of postreleasesupervision, on his conviction of criminal possession of a weapon in the second degree, with thesentences to run consecutively to each other.
Ordered that the judgment is modified, on the law, by providing that the sentence imposed onthe conviction of murder in the second degree shall run concurrently with the sentence imposedon the conviction of criminal possession of a weapon in the second degree; as so modified, thejudgment is affirmed.
Following a trial, the jury found the defendant guilty of murder in the second degree,rejecting his defense of justification, and guilty of criminal possession of a weapon in the seconddegree. The court imposed sentences on these convictions to run consecutively to each other. Thedefendant appeals.
The defendant's contention that the evidence was legally insufficient to disprove hisjustification defense beyond a reasonable doubt is unpreserved for appellate review (seeCPL 470.05 [2]; People vHawkins, 11 NY3d 484, 492 [2008]). In any event, viewing the evidence in the lightmost favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we findthat it was legally sufficient to disprove the defendant's justification defense beyond a reasonabledoubt (see Penal Law § 35.15; People v Hansen, 153 AD3d 1431, 1432 [2017]). Moreover, uponour independent review of the evidence pursuant to CPL 470.15 (5), we are satisfied that thejury's rejection of the justification defense and the verdict of guilt on the count of murder in thesecond degree was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
However, we agree with the defendant that the sentence imposed on the conviction ofcriminal possession of a weapon in the second degree should not run consecutively to thesentence [*2]imposed on the conviction of murder in the seconddegree. "No evidence was adduced at trial to establish that the defendant's possession of a gunwas separate and distinct from his shooting of the victim" (People v Harris, 115 AD3d 761, 763 [2014]; see People v Sanchez, 31 NY3d949 [2018]). Accordingly, the terms of imprisonment imposed on the defendant'sconvictions of murder in the second degree and criminal possession of a weapon in the seconddegree must run concurrently (seePeople v Michel, 144 AD3d 948, 949 [2016]; People v Harris, 115 AD3d at 763;cf. People v Fabers, 133 AD3d616, 618 [2015]).
The defendant's remaining contention is without merit. Dillon, J.P., Leventhal, Miller andDuffy, JJ., concur.