Opinion
November 5, 1992
Appeal from the Supreme Court, New York County (Richard Lowe, III, J.).
We reject defendant's largely unpreserved argument that the prosecutor's summation arguments improperly denigrated the defense, accused the defense witnesses of lying and vouched for the credibility of its only eyewitness. Also meritless is defendant's argument that the court improperly sentenced defendant by utilizing a presentence report which did not include an interview with defendant. The court was under no obligation to adjourn sentencing in order to grant defendant an interview where defendant claimed at sentencing that he refused to be interviewed only because he believed the interview concerned an unrelated probation violation (see, People v Marin, 157 A.D.2d 804, lv denied 76 N.Y.2d 791). Furthermore, at sentencing defendant was afforded an opportunity to provide information to the court which he could have provided in an interview (People v Bonadie, 151 A.D.2d 686, lv denied 74 N.Y.2d 845).
Since there was no proof that defendant possessed a weapon with intent to use it unlawfully against another at any time other than at the moment defendant shot the deceased, the court erred in imposing a consecutive sentence for criminal possession of a weapon in the second degree (Penal Law § 70.25; People v Ellis, 139 A.D.2d 662, lv denied 72 N.Y.2d 918; cf., People v Robbins, 118 A.D.2d 820).
Concur — Sullivan, J.P., Milonas, Rosenberger and Asch, JJ.