60 A.D.2d 897 | N.Y. App. Div. | 1978
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered January 31, 1977, convicting him of murder in the second degree (two counts), attempted murder in the second degree, robbery in the first degree (two counts), assault in the first degree (two counts) and possession of a weapon in the second degree, upon a jury verdict, and sentencing him, as a second felony offender, to concurrent terms of imprisonment of 25 years to life on the murder counts, 12½ to 25 years on the attempted murder count, 10 to 20 years on the robbery counts and 7½ to 15 years on one of the assault counts and the weapons possession count. Judgment modified, on the law and the facts, by (1) reversing the conviction of murder in the second degree under the first count of the indictment, and the sentence imposed thereon, and the said count is dismissed, and (2) imposing a concurrent 7½- to 15-year term of imprisonment with respect to the conviction of assault in the first degree under the eighth count of the indictment. As so modified, judgment affirmed. There was insufficient evidence to support a guilty verdict on the count charging common-law murder. The evidence did not lead exclusively to the inference that the defendant had knowledge of the accomplice’s intent to kill the deceased (see People v La Belle, 18 NY2d 405). We have considered the other contentions raised by the defendant and find them to be without merit. Although the trial court inadvertently failed to sentence the defendant with respect to one of the two counts of assault in the first degree of which he was convicted, it is clear from a reading of the sentencing minutes and the clerk’s minutes that it was intended that he be sentenced to the same term as was imposed upon his conviction of the other assault count. Mollen, P. J., Suozzi, Cohalan and Hawkins, JJ., concur.
