People v. FlaxPeople v. Flax
— Judgment unanimously modified on the law and as modified affirmed and defendant remanded to Supreme Court, Erie County, for resentencing, in accordance with the following memorandum: Defendant was arrested in June 1987 for the rape of one victim and in September he was arrested for rape, burglary and robbery of a second victim. He was convicted, after a jury trial, of rape in the first degree of the first victim and robbery in the second degree and burglary in the second degree in the second incident. The court improperly sentenced defendant to concurrent terms of imprisonment. The People are correct that consecutive sentences are required unless, upon remand, the sentencing court finds mitigating circumstances, pursuant to Penal Law § 70.25 (2-b). Accordingly, defendant’s sentence is vacated, and he is remanded for resentencing. We have examined defendant’s arguments on appeal and find them lacking in merit. (Appeal from judgment of Supreme Court, Erie County, Kasler, J. — rape, first degree, and other charges.) Present — Callahan, J. P., Boomer, Pine, Lawton and Davis, JJ.