| People v Devorce |
| 2019 NY Slip Op 08859 [178 AD3d 846] |
| December 11, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Lamont Devorce, Appellant. |
Clare J. Degnan, White Plains, NY (David B. Weisfuse of counsel), for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Christine DiSalvo, Steven A.Bender, and William C. Milaccio of counsel), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Westchester County (BarryE. Warhit, J.), imposed April 18, 2018, upon his conviction of robbery in the first degree (12counts), attempted robbery in the first degree (2 counts), assault in the first degree, and criminalpossession of a weapon in the second degree, upon a jury verdict, the resentence being anindeterminate term of imprisonment of 7
Ordered that the resentence is modified, on the law, by providing that the term ofimprisonment imposed upon the conviction of criminal possession of a weapon in the seconddegree is to run concurrently with the terms of imprisonment imposed upon the convictions ofthe other crimes; as so modified, the resentence is affirmed.
The People concede that the resentence should be modified so that the sentence imposedupon the conviction of criminal possession of a weapon in the second degree runs concurrentlywith the terms of imprisonment imposed upon the convictions of the other crimes. The People'stheory from the outset of the prosecution was that the defendant possessed a gun with the intentto unlawfully use it during the course of a robbery. The People never alleged or proved that thedefendant had an unlawful intent separate and distinct from his intent to commit the robbery.Therefore, a consecutive sentence was not permissible (see People v Wright, 19 NY3d 359, 365 [2012]; People v Hamilton, 4 NY3d 654,658 [2005]; People v Salcedo, 92 NY2d 1019, 1021-1022 [1998]).
The defendant's contention regarding the underlying conviction of assault in the first degreeis not properly before this Court on appeal from the resentence. The defendant had anopportunity to raise this issue on his appeal from the judgment of conviction (see People v Curtis, 119 AD3d705 [2014]; People v Ennis, 119 AD2d 689 [1986]). The appeal from the resentenceis considered an appeal from a sentence, not from the judgment of conviction (see CPL450.30 [3]; People v Golb, 126AD3d 401 [2015]). Chambers, J.P., Austin, LaSalle and Barros, JJ., concur.