PEOPLE v. GRIPALDI (1997)

Judgment, Supreme Court, New York County (James Leff, J.), rendered January 12, 1994, convicting defendant, after a jury trial, of attempted murder in the second degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree (3 counts), and assault in the second degree, and sentencing him to concurrent terms of 8 1/3 to 25 years on the attempted murder conviction, 2 1/3 to 7 years on the third-degree weapon possession convictions, and 2 1/3 to 7 years on the assault conviction, and to a term of 5 to 15 years on the second-degree weapon possession conviction, to run consecutively to the sentence imposed on the attempted murder in the second degree conviction, unanimously modified, on the law, to provide that all sentences shall run concurrently with each other, and otherwise affirmed.

 A statement regarding the shooting made by a witness thereto virtually simultaneously with the end of an exchange of gunfire between defendant and the complainant, during which the witness was in the line of fire and attempting to halt the encounter, was properly admitted under the excited utterance exception to the hearsay rule (People v. Caviness, 38 N.Y.2d 227, 379 N.Y.S.2d 695, 342 N.E.2d 496).

Defendant's current claims of error in connection with introduction of evidence that defendant possessed false identification papers are unpreserved and we decline to review them in the interest of justice.

Defendant's conviction for possession of a defaced firearm under Penal Law § 265.02(3) was supported by legally sufficient evidence and the verdict was not against the weight of the evidence.

 The sentence imposed on the criminal possession of a weapon in the second degree conviction should run concurrently with the sentence imposed on the attempted murder in the second degree conviction, because these crimes constituted a single act for sentencing purposes (People v. Laureano, 87 N.Y.2d 640, 642 N.Y.S.2d 150, 664 N.E.2d 1212;  People v. Brown, 80 N.Y.2d 361, 590 N.Y.S.2d 422, 604 N.E.2d 1353).

MEMORANDUM BY THE COURT.