People v. Luster

Judgment, Supreme Court, New York County (James J. Leff, J.), rendered April 23, 1986, convicting defendant after a jury trial, of attempted murder in the second degree, assault in the first degree, criminal use of a firearm in the first degree, and criminal possession of a *306weapon in the second degree, and sentencing him, as a second felony offender, to consecutive terms of TVz to 15 years’ imprisonment on the assault and criminal possession convictions, and 12 Vi to 25 years’ imprisonment on the attempted murder and criminal use convictions, unanimously modified, on the law, to the extent of vacating the conviction for criminal possession of a weapon in the second degree, vacating the sentence imposed and dismissing that count of the indictment, and providing that the other sentences imposed shall run concurrently rather than consecutively, and otherwise affirmed.

The People agree that all of the charges against defendant arose from a single shot fired by him, which entered the cheek of one victim, passed through his neck and entered the left shoulder of the second victim, and that, therefore, the sentences imposed should run concurrently rather than consecutively. (Penal Law § 70.25 [2]; People v Brathwaite, 63 NY2d 839, 843.) The People also concede that the count charging defendant with criminal possession of a weapon in the second degree should have been dismissed since it was an inclusory concurrent count of the charge of criminal use of a firearm in the first degree, and under the circumstances of this case defendant could not have committed the crime of criminal use of a firearm without committing the crime of criminal possession of the same firearm. (CPL 300.30 [4]; 300.40 [3] [b]; People v Grier, 37 NY2d 847.) We have considered defendant’s other contentions and find them without merit. The judgment is modified accordingly. Concur — Kupferman, J. P., Carro, Milonas, Rosenberger and Smith, JJ.