Opinion
2014-06-10
The PEOPLE of the State of New York, Respondent, v. Kentrel WHITAKER, Defendant–Appellant.
Cardozo Appeals Clinic, New York (Stanley Neustadter of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), for respondent.
Cardozo Appeals Clinic, New York (Stanley Neustadter of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), for respondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered March 12, 2012, as amended April 17, 2012, convicting defendant, after a jury trial, of attempted rape in the first degree and assault in the second degree, and sentencing him, as a second felony offender, to consecutive terms of 15 years and seven years, respectively, unanimously modified, on the law, to the extent of directing that the sentences run concurrently, and otherwise affirmed.
Concurrent sentences were required because the two convictions were based on the same act ( seePenal Law § 70.25[2] Defendant's act of punching the victim in the face while he was on top of her was the force necessary to subdue her in furtherance of the attempted rape ( see e.g. People v. Carmona, 205 A.D.2d 443, 613 N.Y.S.2d 897 [1st Dept.1994], lv. denied84 N.Y.2d 866, 618 N.Y.S.2d 12, 642 N.E.2d 331 [1994];People v. Bolden, 83 A.D.2d 921, 442 N.Y.S.2d 777 [1st Dept.1981], affd. 58 N.Y.2d 741, 459 N.Y.S.2d 22, 445 N.E.2d 198 [1982] ). TOM, J.P., FRIEDMAN, RENWICK, GISCHE, CLARK, JJ., concur.