Opinion
2016–10917 Ind.No. 8494/13
09-02-2020
The PEOPLE, etc., respondent, v. Cyrus GOODMAN, appellant.
Paul Skip Laisure, New York, NY, for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M. Lieberman of counsel), for respondent.
Paul Skip Laisure, New York, NY, for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M. Lieberman of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent M. Del Giudice, J.), rendered September 12, 2016, convicting him of assault in the second degree and attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and sentencing him to consecutive determinate terms of imprisonment of six years on each conviction, to be followed by a period of three years of postrelease supervision.
ORDERED that the judgment is modified, on the law, by providing that the sentence imposed on the conviction of assault in the second degree shall run concurrently with the sentence imposed on the conviction of attempted criminal possession of a weapon in the second degree; as so modified, the judgment is affirmed.
As the People concede, the sentence imposed on the conviction of assault in the second degree should not run consecutively to the sentence imposed on the conviction of attempted criminal possession of a weapon in the second degree. There were no facts adduced at the defendant's plea allocution to establish that the defendant attempted to possess " ‘a loaded firearm before forming the intent to cause a crime with that weapon’ " ( People v. Michel, 144 A.D.3d 948, 949, 41 N.Y.S.3d 112, quoting People v. Brown, 21 N.Y.3d 739, 751, 977 N.Y.S.2d 723, 999 N.E.2d 1168 ; see generally People v. Laureano, 87 N.Y.2d 640, 644–645, 642 N.Y.S.2d 150, 664 N.E.2d 1212 ). Accordingly, the terms of imprisonment imposed on the defendant's convictions of assault in the second degree and attempted criminal possession of a weapon in the second degree must run concurrently (see Penal Law § 70.25[2] ; People v. Ross, 164 A.D.3d 528, 529, 77 N.Y.S.3d 876 ; People v. Michel, 144 A.D.3d at 949, 41 N.Y.S.3d 112 ; People v. Harris, 115 A.D.3d 761, 763, 981 N.Y.S.2d 451 ; cf. People v. Malloy, 33 N.Y.3d 1078, 1080, 104 N.Y.S.3d 595, 128 N.E.3d 673 ).
The sentence imposed, as modified, was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
RIVERA, J.P., AUSTIN, IANNACCI and CHRISTOPHER, JJ., concur.