Opinion
November 16, 1994
Appeal from the Onondaga County Court, Cunningham, J.
Present — Green, J.P., Pine, Lawton, Callahan and Doerr, JJ.
Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Viewed in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 621), the evidence is sufficient to support defendant's conviction of conspiracy in the second degree (see, Penal Law § 105.15; People v. Givens, 181 A.D.2d 1031, lv denied
79 N.Y.2d 1049) and to establish the aggregate weight of the cocaine (see, People v. Brandon, 209 A.D.2d 997 [decided herewith]; People v. Nelson, 144 A.D.2d 714, 717, lv denied 73 N.Y.2d 894; People v. Konyack, 99 A.D.2d 588; Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law art 220, at 9-11). We reject the contentions that the prosecutor's use of a chart during summation deprived defendant of a fair trial (see, People v. Galloway, 54 N.Y.2d 396, 401; People v. Brandon, supra) and that the imposition of consecutive terms of imprisonment rendered the sentence harsh or excessive.
The sentencing court erred, however, in directing that the term of imprisonment imposed on the 15th count, criminal possession of a controlled substance in the third degree, be served consecutively to the term imposed on the 14th count, criminal possession of a controlled substance in the second degree. Sentences must be imposed to run concurrently "for two or more offenses committed through a single act" (Penal Law § 70.25). Because both offenses arose from the possession of a particular quantity of cocaine on April 11, 1992, concurrent sentences are mandated for the 14th and 15th counts (see, People v. Varon, 168 A.D.2d 349, 451, lv denied 77 N.Y.2d 911; see also, People v. Saa, 199 A.D.2d 346; People v. Foskit, 168 A.D.2d 961, lv denied 77 N.Y.2d 877). Thus, we modify the sentence and direct that the terms of imprisonment imposed on the 14th and 15th counts of the indictment run concurrently.