Opinion
October 1, 1999
Appeal from Judgment of Onondaga County Court, Burke, J. — Murder, 2nd Degree.
Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum:
The verdict is supported by legally sufficient evidence and is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495). Given that this was a calculated, execution-style killing, the imposition of the maximum terms for defendant's conviction of murder in the second degree (Penal Law § 125.25) and criminal possession of a weapon in the second degree (Penal Law § 265.03) did not constitute an abuse of discretion. We modify the judgment, however, by providing that the sentences run concurrently. The evidence adduced at trial did not establish "that for any period prior to the shooting, defendant possessed the gun with an intent distinct from his specific intent at the time of the shooting * * * such that a possessory crime would have been complete prior to the shooting" (People v. Pena, 259 A.D.2d 394, 395 [decided Mar. 23, 1999]; cf., People v. Fernandez, 262 A.D.2d 170 [decided June 17, 1999]; see generally, People v. Salcedo, 92 N.Y.2d 1019).
PRESENT: LAWTON, J. P., HAYES, WISNER, PIGOTT, JR., AND BALIO, JJ.