Opinion
July 25, 1994
Appeal from the Supreme Court, Kings County (Jones, J.).
Ordered that the judgment is modified, on the law, by deleting the provision thereof imposing consecutive terms of imprisonment and substituting therefor a provision imposing concurrent terms of imprisonment; as so modified, the judgment is affirmed.
Since the defendant did not object to the statements that were made by the prosecutor during his summation, the issue of their propriety is unpreserved for appellate review (see, CPL 470.05; People v. Balls, 69 N.Y.2d 641; People v. Medina, 53 N.Y.2d 951). In any event, we find that the closing remarks by the prosecutor were fair comment on the evidence (see, People v Galloway, 54 N.Y.2d 396).
However, we find that the sentencing court erred in imposing consecutive sentences for the defendant's convictions of reckless endangerment in the first degree and criminal possession of a weapon in the second degree since both convictions arose out of a single incident. The mere fact that the defendant possessed the gun immediately prior to the attack does not establish sufficient proof of a separate and distinct act to justify the imposition of consecutive sentences (see, Penal Law § 70.25; People v Brown, 80 N.Y.2d 361; People v. Ali, 188 A.D.2d 476; People v Crandall, 181 A.D.2d 687; People v. Abdullah, 179 A.D.2d 661; People v. Jenkins, 176 A.D.2d 348; People v. Nedrick, 166 A.D.2d 725; People v. Jeter, 163 A.D.2d 421, affd 80 N.Y.2d 818; People v. Wallace, 152 A.D.2d 713). Thompson, J.P., Balletta, Krausman and Florio, JJ., concur.