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People v. James

221 A.D.2d 658 Court N.Y. App. Div. Decision date 1995-11-27 English

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p. 658
The People of the State of New York, Respondent, v Oliver James, Appellant.
[634 NYS2d 213]

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Patterson, J.), rendered July 19, 1994, convicting him of robbery in the second degree (two counts), criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Miller, J.), after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the People established that he had abandoned his knapsack, which contained a gun (see, People v Howard, 50 NY2d 583 , cert denied 449 US 1023 ; People v Hogya, 80 AD2d 621 ).

In addition, the defendant contends that because the crimes

p. 659
for which he was convicted were part of one transaction and arose from a single act, the court erred in ordering the sentence for criminal possession of a weapon in the second degree to be served consecutively to the sentence for robbery in the second degree (see, Penal Law § 70.25 [2]). However, according to the testimony elicited at trial, the defendant used an unloaded, inoperable gun to rob the victim and the defendant also possessed a loaded, operable gun in a knapsack on his back during and after the robbery. The defendant dropped the knapsack while being pursued by the police and a later search revealed the loaded gun. From these facts, the jury could have reasonably inferred that the defendant possessed the loaded gun with the intent to use it unlawfully against another, separate from the ultimate act which resulted in the robbery charge. Accordingly, imposition of consecutive sentences was permissible (see, People v Day, 73 NY2d 208 ; People v James, 211 AD2d 824 ; People v Seow, 194 AD2d 635 ).

The sentence imposed was not excessive, (see, People v Suitte, 90 AD2d 80 ). Bracken, J. P., Sullivan, Miller and Florio, JJ., concur.

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