Opinion
April 21, 1998
Appeal from the Supreme Court, New York County (Carol Berkman, J.).
Defendant's suppression motion was properly denied. The court properly determined that, under the totality of the circumstances, defendant's statement to the police was voluntarily. made. Police testimony, as well as the testimony of an EMS technician who interviewed and examined defendant at the time in question, indicates that he was alert and oriented and made the statement after voluntary waiver of the Miranda rights ( see, People v. Walker, 235 A.D.2d 262, lv denied 89 N.Y.2d 1102; People v. Del Rosario, 210 A.D.2d 72, lv denied 84 N.Y.2d 1030; see also, People v. Nieves, 205 A.D.2d 173, 184, aff'd 88 N.Y.2d 618).
Defense counsel's failure to provide timely alibi notice pursuant to CPL 250.20 did not, under the circumstances, constitute the ineffective assistance of counsel ( see, People v. Alvarez, 223 A.D.2d 401, lv denied 88 N.Y.2d 980; see also, People v. Shaw, 232 A.D.2d 174, 175, lv denied 89 N.Y.2d 946). Although defendant attempted to call the purported alibi witness to testify in the Grand Jury on his behalf, the witness informed the prosecution's investigator that he would not testify for anyone, under any circumstances. As the record now stands, defendant renewed the request that the witness testify, through counsel, only after the trial had commenced, despite the fact that a defense investigator had interviewed him several months earlier. Since the extant record indicates that defendant never consistently pursued an alibi defense, it cannot be said that the preclusion of the alibi testimony was the result of counsel's ineffectiveness. Indeed, counsel's substantial, although unsuccessful, efforts to accommodate defendant's eleventh-hour request belie such a claim.
Defendant's claims in connection with an alleged corruption investigation involving two of the police witnesses, and the alleged impropriety by the prosecutor during the Grand Jury proceedings, are unreviewable because defendant has provided no competent record ( see, People v. Phelps, 74 N.Y.2d 919). Defendant's submissions on a CPL article 440 motion are not part of the record because no appeal from the denial of that motion is before this Court. The existing record before this Court indicates that the prosecutor complied with the applicable statutory provision in providing appropriate notice to defendant regarding a prior conviction of a People's witness (CPL 240.45 [b]). In any event, defendant was afforded the opportunity to examine the witness' full criminal history at trial ( see, People v. Osborne, 91 N.Y.2d 827) and any error was harmless in light of the overwhelming evidence of defendant's guilt ( see, People v. Pressley, 91 N.Y.2d 825).
We modify some of the consecutive sentences imposed by the court as violative of Penal Law § 70.25 (2). That section requires concurrent sentences "for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other" (Penal Law § 70.25). Thus, consecutive sentences are prohibited "(1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other ( People v. Catone, 65 N.Y.2d 1003, 1004-1005; see also, People ex rel. Maurer v. Jackson, 2 N.Y.2d 259, 264)." ( People v. Laureano, 87 N.Y.2d 640, 643.) However, even where the statutory elements of two offenses overlap, "the People may yet establish the legality of consecutive sentencing by showing that the `acts or omissions' committed by defendant were separate and distinct acts" ( People v. Laureano, supra, at 643).
Although the robbery committed in the store and the subsequent shooting of the police officer were plainly separate incidents, the sentence imposed on count 1 charging robbery in the first degree (Penal Law § 160.15 ["(c)auses serious physical injury to any person"]) cannot be consecutive to the assault convictions under counts 7, 8 and 9 ( see, Penal Law § 120.11, 120.10 Penal [1], [4]), since the act of producing bodily injury to the officer constituted the assault offenses and was a material element of that robbery count ( see, People v. Laureano, supra; People v. Hyde, 240 A.D.2d 849, lv denied 91 N.Y.2d 874). However, since the second robbery conviction under count 2 was for forcible stealing with the use of a deadly weapon ( see, Penal Law § 160.15), no such infirmity exists and the consecutive sentences for that robbery conviction and the assault convictions may stand ( People v. Hyde, supra).
Additionally, as the People concede, the sentences for defendant's convictions for criminal possession of a weapon in the second and third degrees must be concurrent because there was no evidence that defendant possessed a weapon without the intent to use it unlawfully. While there may be a lawful basis to run the sentence on the conviction for third-degree weapon possession consecutive to the sentence on the assault convictions, it was an abuse of discretion to do so, where the aggregate sentence without such feature is 75 years to life. The consecutive sentence for reckless endangerment in the first degree was plainly proper as it was based on acts separate and distinct from all the other offenses ( People v. Laureano, supra). Thus, the sentences for all convictions are concurrent except the sentences on one conviction of robbery in the first degree (count 2) and the reckless endangerment conviction (count 10), which shall run consecutively to each other and to the concurrent sentences on the assault and weapons possession convictions.
Concur — Milonas, J.P., Nardelli, Rubin, Mazzarelli and Andrias, JJ.