Opinion
December 30, 1991
Appeal from the Supreme Court, Kings County (Owens, J.).
Ordered that the judgment is modified, on the law, by providing that all the terms of imprisonment shall be served concurrently; as so modified, the judgment is affirmed.
The defendant's convictions stem from his participation in the abduction and shooting murder of Dwayne Simmons. Contrary to the defendant's contention, he has failed to demonstrate a deprivation of his right to the effective assistance of counsel. In order to prevail on such a claim, the defendant must overcome the strong presumption that defense counsel rendered effective assistance (see, People v Baldi, 54 N.Y.2d 137). Moreover, the defendant must also show that, but for counsel's allegedly deficient performance, the outcome of the trial would have been different (see, People v Cuesta, 177 A.D.2d 639). The defendant's attorney actively and skillfully defended his case in the face of overwhelming evidence of guilt. We are satisfied that the defendant received the effective assistance of counsel. We note that even assuming, arguendo, that counsel's representation were deficient in some respects, the defendant ultimately failed to show any actual prejudice, since the jury's verdict would without any doubt have been the same (see, People v Cuesta, supra; People v Sullivan, 153 A.D.2d 223, 229).
The sentencing court erred in directing that the term of imprisonment imposed for kidnapping in the first degree run consecutively to the other terms of imprisonment. The act of kidnapping in the first degree was not complete until the victim was shot and killed (see, Penal Law § 135.25). It was this same shooting that formed the basis for the defendant's conviction for intentional murder. Therefore, these convictions, which were essentially based upon the same acts, must run concurrently (see, People v Morgan, 177 A.D.2d 655; People v Esquilin, 159 A.D.2d 632, 634; Penal Law § 70.25).
The defendant's remaining contentions are either unpreserved for appellate review (see, CPL 470.05; People v Udzinski, 146 A.D.2d 245) without merit, or do not warrant reversal of the judgment of conviction. Thompson, J.P., Bracken, Harwood and Miller, JJ., concur.