People v. Smith

Nov 16, 1994
Versions:209 A.D.2d 996
622 N.Y.S.2d 163
1994 N.Y. App. Div. LEXIS 12018

—Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Viewed in the light most favorable to the People (see, People v Contes, 60 NY2d 620, 621), the evidence is sufficient to support defendant’s conviction of conspiracy in the second degree (see, Penal Law § 105.15; People v Givens, 181 AD2d 1031, lv denied 79 NY2d 1049) and to establish the aggregate weight of the cocaine (see, People v Brandon, 209 AD2d 997 [decided herewith]; People v Nelson, 144 AD2d 714, 717, lv denied 73 NY2d 894; People v Konyack, 99 AD2d 588; Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 220, at 9-11). We reject the contentions that the prosecutor’s use of a chart during summation deprived defendant of a fair trial (see, People v Galloway, 54 NY2d 396, 401; People v Brandon, supra) and that the imposition of consecutive terms of imprisonment rendered the sentence harsh or excessive.

The sentencing court erred, however, in directing that the term of imprisonment imposed on the 15th count, criminal possession of a controlled substance in the third degree, be served consecutively to the term imposed on the 14th count, criminal possession of a controlled substance in the second degree. Sentences must be imposed to run concurrently "for two or more offenses committed through a single act” (Penal Law § 70.25 [2]). Because both offenses arose from the possession of a particular quantity of cocaine on April 11, 1992, concurrent sentences are mandated for the 14th and 15th counts (see, People v Varon, 168 AD2d 349, 451, lv denied 77 NY2d 911; see also, People v Saa, 199 AD2d 346; People v Foskit, 168 AD2d 961, lv denied 77 NY2d 877). Thus, we modify the sentence and direct that the terms of imprisonment imposed on the 14th and 15th counts of the indictment run concurrently. (Appeal from Judgment of Onondaga County Court, Cunningham, J.—Conspiracy, 2nd Degree.) Present—Green, J. P., Pine, Lawton, Callahan and Doerr, JJ.