Opinion
March 24, 1997.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Kuffner, J.), rendered May 25, 1995, convicting him of murder in the second degree, attempted robbery in the first degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.
Before: Thompson, J. P., Pizzuto, Joy and Luciano, JJ.
Ordered that the judgment is modified, on the law, so as to provide that all of the terms of imprisonment shall run concurrently with each other; as so modified, the judgment is affirmed.
The defendant's contention that he was denied a fair trial by the court's charge regarding the voluntariness of his statements is unpreserved for appellate review ( see, CPL 470.05; People v Smalls, 185 AD2d 863; People v Roth, 139 AD2d 605, 608; People v Beaudoin, 198 AD2d 610). In any event, the charge, taken as a whole, was appropriate and adequately set forth the relevant factors and legal standards the jury had to apply in evaluating whether the defendant's statements were voluntary ( see, People v Alvares, 219 AD2d 520, 521; People v Bowen, 134 AD2d 356, 357; 1 CJI[NY] 11.01 et seq.).
However, the imposition of a consecutive determinate sentence of one year for the conviction of criminal possession of a controlled substance in the seventh degree was error. Under the circumstances of this case, Penal Law § 70.35 "contemplates that the definite and indeterminate sentences will be served concurrently" ( People v Leabo, 84 NY2d 952, 953). As so modified, the sentence is not excessive.