Opinion
February 2, 1996
Appeal from the Supreme Court, Erie County, Cosgrove, J.
Present — Green, J.P., Lawton, Fallon, Doerr and Balio, JJ.
Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: The verdict convicting defendant of criminal possession of a weapon in the third degree (Penal Law § 265.02) is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495). "[C]redibility is a matter to be determined by the trier of the facts (see, People v Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932) and the jury was in the best position to resolve the conflict in the testimony" (People v. Conner, 195 A.D.2d 1078, lv denied 82 N.Y.2d 715; see, People v. Gaskin, 186 A.D.2d 995).
Defendant was sentenced to an indeterminate term of imprisonment of 2 to 6 years, to be served consecutively to a term of 5 to 15 years imposed on a conviction of assault in the first degree under indictment No. 93-1471-001. In our view, the imposition of consecutive terms of imprisonment rendered the sentence unduly harsh (see, CPL 470.15 [b]). We, therefore, as a matter of discretion in the interest of justice, modify the judgment by directing that the sentence run concurrently with the sentence imposed on the conviction of assault in the first degree under indictment No. 93-1471-001.