People v. Romero

Appeal by defendant from an order of the Supreme Court, Kings County, entered April 8, 1971, which denied his motion for resentence (he was originally sentenced on March 16, 1967). Order reversed, on the law, motion granted and case remitted to the Criminal Term for resentence in accordance with the views herein set forth. The judgment in question, which was affirmed by this court (People v. Romero, 32 A D 2d 971), convicted defendant of assault in the second degree (two counts) and felonious possession of dangerous weapons. Defendant was sentenced to concurrent terms of two and one-half to five years on the assault counts and to a term of three and one-half to seven years on the possession count, the possession sentence to run consecutively with the assault sentences. The motion for resentence was made and decided prior to the effective date of the Criminal Procedure Law and the appealability of the order under review is governed by the provisions of the Code of Criminal Procedure (see People v. Simmons, 40 A D 2d 563). Under the latter code no appeal from an order denying a motion for resentence could ordinarily be taken. However, the rule was otherwise if the legality of the sentence was in question (People v. Mellon, 261 App. Div. 400, 401). In our opinion defendant was improperly sentenced to *745consecutive terms of imprisonment. The weapon possessed by him was the revolver used in the commission of the assaults. The assaults were punishable as second degree assaults because of the use of the revolver (see Penal Law of 1909, § 242). As defendant’s conduct would not have been punishable as assault in the second degree had he not possessed the revolver and as the possession was an incident of the assaults, the possession could not be punished by the imposition of a sentence to run consecutively with the assault sentences (see People v. Repola, 280 App. Div. 735, 739, affd. 305 N. Y. 740; People v. Nelson, 283 App. Div. 1116; People v. Nieves, 29 A D 2d 657). Latham, Acting P. J., Shapiro, Christ, Brennan and Benjamin, JJ., concur.