Opinion
August 28, 1989
Appeal from the Supreme Court, Kings County (Egitto, J.).
Ordered that the judgment is modified, on the law, by deleting the provision providing that the terms of imprisonment imposed on the conviction of murder in the second degree (counts three and four) be served consecutively to the sentences imposed under counts one and two, and substituting therefor a provision that said terms of imprisonment shall run concurrently with each other; as so modified, the judgment is affirmed.
The majority of the prosecutor's summation comments to which the defendant now ascribes impropriety were not objected to at trial and thus are not preserved for appellate review (CPL 470.05; People v. Nuccie, 57 N.Y.2d 818; People v. Cade, 138 A.D.2d 388, 389, affd 73 N.Y.2d 904). Moreover, a review of the record indicates that the prosecutor's summation comments were either made in response to defense counsel's summation or constituted fair comment on the evidence (see, People v. Martin, 149 A.D.2d 534; People v. Dupree, 148 A.D.2d 465; People v. Miller, 143 A.D.2d 1055).
The court erred, however — as the People concede — in imposing consecutive sentences with respect to the counts of murder in the second degree of which the defendant was convicted. Since the deaths of the two victims resulted from the defendant's single act of arson, any sentences imposed should have run concurrently (see, Penal Law § 70.25; People v. Day, 73 N.Y.2d 208, 211-212; People v. Underwood, 52 N.Y.2d 882). Kunzeman, J.P., Kooper, Harwood and Rosenblatt, JJ., concur.