Opinion
February 19, 1991
Appeal from the Supreme Court, Westchester County (West, J.).
Ordered that the judgment is modified, on the law, by providing that the terms of imprisonment imposed on the convictions for murder in the second degree and robbery in the first degree shall run concurrently with each other; as so modified, the judgment is affirmed.
Contrary to the defendant's contentions, the trial court properly allowed into evidence black and white photographs depicting the murder victim and his injuries (see, People v Bell, 63 N.Y.2d 796; People v Pobliner, 32 N.Y.2d 356, rearg denied 33 N.Y.2d 657, cert denied 416 U.S. 905; People v Moore, 161 A.D.2d 673; People v Harris, 149 A.D.2d 433). The photographs were admitted to show the location of approximately 33 knife wounds inflicted on the different parts of the victim's body, as well as to illustrate and corroborate the testimony of the medical examiner. Moreover, the photos were in black and white and the wounds had been cleansed (see, People v Bell, supra, at 797). Accordingly, they were not offered to inflame the jury, and their probative value far outweighed any prejudicial effect they may have created (see, People v Stevens, 76 N.Y.2d 833).
Furthermore, the trial court did not improvidently exercise its discretion by permitting a prosecution expert witness to give his opinion regarding the origination of the bloody foot-prints made at the scene of the crime, based on a comparative analysis with exemplars developed from the defendant's sneakers (see, People v Cronin, 60 N.Y.2d 430, 432; cf., People v Bay, 67 N.Y.2d 787; People v Mortillaro, 143 A.D.2d 148).
Additionally, the defendant contends that his guilt was not proven beyond reasonable doubt. However, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
However, we agree with the defendant that under the circumstances of this case, the imposition of consecutive sentences was inappropriate. Penal Law § 70.25 (2) provides that the terms of imprisonment imposed for two or more offenses must run concurrently where those offenses were "committed through a single act or omission". Here, there was no evidence adduced to establish the manner in which the murder and robbery occurred. "Inasmuch as the People are unable to point to any testimony or evidence which would support the view that the offenses of which defendant stands convicted involved disparate or separate acts, the sentences must run concurrently (Penal Law, § 70.25, subd 2)" (People v Underwood, 52 N.Y.2d 882, 883; People v German, 139 A.D.2d 529; see also, People v Derhi, 110 A.D.2d 709; People v Grant, 96 A.D.2d 867).
We have examined the defendant's remaining contentions and find them to be without merit (see, e.g., People v Rodriguez, 69 N.Y.2d 159; People v Pelchat, 62 N.Y.2d 97; People v Ponder, 54 N.Y.2d 160). Brown, J.P., Rosenblatt, Miller and Ritter, JJ., concur.