Opinion
April 8, 1985
Appeal from the Supreme Court, Queens County (Browne, J.).
Judgment modified, on the law, so as to provide that the sentences imposed for attempted murder in the second degree, robbery in the first degree (two counts), and criminal use of a firearm in the first degree shall be concurrent. As so modified, judgment affirmed.
At sentencing, the People requested that maximum sentences be imposed for the convictions for the intentional murder of Elliot Hyman and the attempted murder of his wife in their apartment in North Shore Towers. The heinous nature of the crimes and the contents of defendant's probation report provided ample grounds for the court to have sentenced the defendant in accordance with the People's request which would have resulted in the imposition of a minimum period of incarceration of 33 1/3 years. The sentencing court, however, imposed the sentence of 25 years to life with respect to the intentional murder conviction, and imposed 8 1/3 to 25-year sentences on the attempted murder, robbery and criminal use of a firearm convictions. These sentences were to run consecutively, resulting in a total minimum period of incarceration of 58 1/3 years to life. Defendant was sentenced to an unconditional discharge on the remaining conviction for criminal possession of a weapon in the fourth degree. Modification is required since, while consecutive sentences for the intentional murder and attempted murder convictions were legally imposed based upon "disparate or separate acts" ( People v. Underwood, 52 N.Y.2d 882, 883; People v Brathwaite, 63 N.Y.2d 839; Penal Law § 70.25; cf. People v Smith, 89 A.D.2d 881, 882), the sentences for the remaining convictions must all run concurrently because the acts which constituted the basis of the attempted murder and criminal use of a firearm in the first degree convictions were an element of one of the robbery convictions ( see, People v. Grant, 96 A.D.2d 867).
Defendant also claims error in the trial court's charge and prosecutorial misconduct in summation as grounds for reversal. The trial court's minimal charge on identification was sufficient ( see, People v. Whalen, 59 N.Y.2d 273, 279), particularly where, as here, the defendant was not a stranger to the victims. He had worked in the Hymans' apartment on two occasions during the month prior to the shootings, the latest occasion having been only a week earlier. On the day of the shootings, the defendant gained entry to the apartment by stating that he was there to measure for an estimate requested by Mrs. Hyman one week earlier. She had an ample opportunity to see defendant's face when he faced and shot her from a distance of four or five feet, and then again at closer range. In addition, there was circumstantial evidence which corroborated defendant's guilt. Accordingly, the well-known dangers of misidentification were not present ( see, Sobel, Eye-Witness Identification, § 1.1; Jackson v. Fogg, 589 F.2d 108, 112).
In view of the overwhelming evidence of guilt, we decline to review in the interest of justice any asserted unpreserved errors in the trial court's charge (CPL 470.05; 470.15 [6] [a]). We further find that the prosecutor made certain improper comments in summation but those comments were harmless error ( see, People v. Crimmins, 36 N.Y.2d 230).
We have considered defendant's remaining contentions and find them to be without merit. Mangano, J.P., Brown, Rubin and Lawrence, JJ., concur.