Opinion
April 14, 1989
Appeal from the Oneida County Court, Buckley, J.
Present — Dillon, P.J., Callahan, Green, Pine and Lawton, JJ.
Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: The court erred in sentencing defendant to consecutive terms of imprisonment upon conviction for assault in the second degree (Penal Law § 120.05) and criminal possession of a weapon in the second degree (Penal Law § 265.03) because the two crimes arose out of the same criminal act and defendant's possession of the weapon was a material element of the assault as charged in the indictment (see, Penal Law § 70.25; People v. Perez, 45 N.Y.2d 204, 210-211; People ex rel. Maurer v. Jackson, 2 N.Y.2d 259, 264; People v. Terry, 104 A.D.2d 572, 573; People v. Torres, 91 A.D.2d 1005; cf., People v. Day, 73 N.Y.2d 208; People v Brathwaite, 63 N.Y.2d 839; People v. Oglesby, 128 Misc.2d 818, 820-821). There is no merit to defendant's remaining claims. Given the violent and dangerous nature of the crimes, the sentences, as imposed concurrently, are not excessive. The proof amply supports the weapon possession conviction (see, People v Filpo, 121 A.D.2d 464, lv denied 68 N.Y.2d 812; People v Bernier, 111 A.D.2d 762, lv denied 66 N.Y.2d 761) and a proper chain of custody was established for admission of the pistol and bullet casing in evidence (see, People v. Julian, 41 N.Y.2d 340). There was no Rosario violation (see, People v. Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866) with respect to witness Smith's statement because the People supplied defendant with the statement as soon as the prosecutor decided to call the witness (see, People v. Perez, 65 N.Y.2d 154). The fact that Investigator Cicigline's notes were not preserved did not prejudice the defendant because the notes were incorporated in the officer's report (see, People v. Martinez, 71 N.Y.2d 937; People v Paranzino, 40 N.Y.2d 1005). Accordingly, the judgment is modified so that the sentences run concurrently and otherwise the judgment is affirmed.