Opinion
December 19, 1994
Appeal from the Supreme Court, Kings County (Slavin, J.).
Ordered that the judgment is modified, on the law, by providing that all the terms of imprisonment shall run concurrently to each other; as so modified, the judgment is affirmed.
The trial court did not improvidently exercise its discretion in denying the defendant's motion for leave to call alibi witnesses, made during pretrial proceedings immediately prior to the commencement of the trial. The defendant did not proffer a reasonable excuse for his failure to file a timely "notice of alibi" pursuant to CPL 250.20 (1). Furthermore, as the crime took place almost 10 months prior to the request, it would be unduly burdensome for the People to locate any witnesses to refute the proposed testimony of the defendant's alibi witnesses (see, People v Toro, 198 A.D.2d 532; People v Caputo, 175 A.D.2d 290). The defendant's alibi was that he was at home at the time of the incident, and had not attended a party directly before the incident, which contradicted what the defendant himself had told the complainant right before he shot her.
Nor is there merit to the defendant's contention that he was deprived of his right to be present during the impanelling of the jury when the court conducted a sidebar conference with one of the jurors concerning her knowledge of the neighborhood where the incident took place (see, People v Sloan, 79 N.Y.2d 386). As we have previously held, the rule announced under People v Sloan (supra) "is to be applied prospectively, i.e., only to those cases in which jury selection occurred after April 7, 1992, the date People v Sloan was decided" (People v Hanningan, 193 A.D.2d 8, 13-14; see, People v Sprowal, 84 N.Y.2d 113). Since jury selection in the case at bar occurred prior to April 7, 1992, the defendant's argument must be rejected.
Because the defendant's possession of a loaded firearm and the shooting of the victim were both committed through a single act, and there is no proof in the record that he possessed the gun prior to shooting the victim (cf., People v Bernier, 204 A.D.2d 732), the sentence imposed for the crime of criminal possession of a weapon in the third degree should run concurrently with the sentences imposed for assault in the first degree and criminal possession of a weapon in the second degree, and the defendant's sentence is modified accordingly (see, Penal Law § 70.25; People v Jenkins, 176 A.D.2d 348, 349; People v Tabb, 208 A.D.2d 780). Lawrence, J.P., Santucci, Altman and Goldstein, JJ., concur.