PEOPLE v. PEREZ (2000)

Judgment, Supreme Court, Bronx County (Daniel FitzGerald, J.), rendered May 4, 1998, convicting defendant, after a nonjury trial, of manslaughter in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, and sentencing him to a term of 5 to 15 years on the manslaughter conviction, consecutive to concurrent terms of 7 1/212 to 15 years and 3 1/212 to 7 years on the weapon convictions, unanimously affirmed.

 The verdict was not against the weight of the evidence.   There is no basis upon which to disturb the court's determinations concerning credibility.   The credible evidence established that during an altercation with the deceased, defendant took a loaded weapon from his pocket and pointed it at the deceased's chest, and that as defendant struggled to keep the weapon pointed at the deceased while the deceased attempted to point it toward the ground, the weapon discharged, striking the deceased in the hand and chest.   Accordingly, the element of recklessness required for manslaughter in the second degree was established.

 The court properly imposed consecutive terms for the manslaughter and weapons convictions.   Defendant's possession of the weapon with intent to use it unlawfully against another was a separate crime completed by defendant, at the latest, when he drew the weapon to intimidate the deceased.   Defendant's reckless act of attempting to keep the weapon pointed at the deceased as the deceased struggled to point the weapon down was a distinct, successive act upon which a consecutive sentence could be imposed lawfully (see, People v. Salcedo, 92 N.Y.2d 1019, 684 N.Y.S.2d 480, 707 N.E.2d 435;  People v. Okafore, 72 N.Y.2d 81, 531 N.Y.S.2d 762, 527 N.E.2d 245;  People v. Malave, 268 A.D.2d 363, 700 N.Y.S.2d 827, lv. denied 95 N.Y.2d 799, 711 N.Y.S.2d 168, 733 N.E.2d 240).

MEMORANDUM DECISION.