PEOPLE v. PARTON (2006)

 Defendant appeals from a judgment convicting him upon a jury verdict of two counts each of murder in the second degree (Penal Law § 125.25 [2], [3] ) and robbery in the first degree (§ 160.15[1], [3] ). We reject defendant's contention that Supreme Court erred in refusing to submit manslaughter in the second degree as a lesser included offense of depraved indifference murder (see People v. James, 19 A.D.3d 616, 617, 797 N.Y.S.2d 129, lv. denied 5 N.Y.3d 807, 803 N.Y.S.2d 36, 836 N.E.2d 1159;  People v. Libardi, 12 A.D.3d 534, 535, 784 N.Y.S.2d 636, lv. denied 4 N.Y.3d 765, 792 N.Y.S.2d 9, 825 N.E.2d 141).   There is no reasonable view of the evidence, viewed in the light most favorable to defendant (see People v. Randolph, 81 N.Y.2d 868, 869, 597 N.Y.S.2d 630, 613 N.E.2d 536), that defendant and his accomplice did not act under circumstances “evincing a depraved indifference to human life” (§ 125.25[2];  see People v. Platt, 299 A.D.2d 496, 749 N.Y.S.2d 885, lv. denied 99 N.Y.2d 618, 757 N.Y.S.2d 829, 787 N.E.2d 1175;  People v. Hernandez [Frankie], 297 A.D.2d 389, 746 N.Y.S.2d 610, lv. denied 98 N.Y.2d 768, 752 N.Y.S.2d 8, 781 N.E.2d 920;  People v. Mills, 291 A.D.2d 844, 844-845, 737 N.Y.S.2d 890, lv. denied 98 N.Y.2d 678, 746 N.Y.S.2d 468, 774 N.E.2d 233, 99 N.Y.2d 538, 752 N.Y.S.2d 598, 782 N.E.2d 576).   Contrary to the further contention of defendant, he was not entitled to a missing witness charge based upon the People's failure to call his accomplice as a witness.   The testimony of defendant's accomplice “would [have been] ‘presumptively suspect’ ․ or subject to impeachment detrimental to the People's case” (People v. Arnold, 298 A.D.2d 895, 895, 748 N.Y.S.2d 92, lv. denied 99 N.Y.2d 580, 755 N.Y.S.2d 715, 785 N.E.2d 737;  see People v. Batson, 219 A.D.2d 538, 631 N.Y.S.2d 345, lv. denied 87 N.Y.2d 844, 638 N.Y.S.2d 602, 661 N.E.2d 1383).

 The court properly imposed consecutive sentences of imprisonment on the counts of depraved indifference murder under Penal Law § 125.25(2) and robbery in the first degree under Penal Law § 160.15(1).  “[T]here is evidence that the serious physical injury necessary for the robbery conviction was caused by an act other than the homicidal act” (People v. Meehan, 229 A.D.2d 715, 718, 646 N.Y.S.2d 716, lv. denied 89 N.Y.2d 926, 654 N.Y.S.2d 728, 677 N.E.2d 300;  see People v. Fulton, 257 A.D.2d 774, 776, 683 N.Y.S.2d 646, lv. denied 93 N.Y.2d 1018, 697 N.Y.S.2d 577, 719 N.E.2d 938;  People v. Gonsa, 220 A.D.2d 27, 33, 644 N.Y.S.2d 346, lv. denied 89 N.Y.2d 923, 654 N.Y.S.2d 725, 677 N.E.2d 297;  cf. People v. Laureano, 87 N.Y.2d 640, 645, 642 N.Y.S.2d 150, 664 N.E.2d 1212;  People v. Hyde, 240 A.D.2d 849, 851-852, 659 N.Y.S.2d 328, lv. denied 91 N.Y.2d 874, 668 N.Y.S.2d 573, 691 N.E.2d 645).   However, the court erred in directing that the sentence imposed on the aforementioned robbery count shall run consecutively to the sentences imposed on the remaining counts, robbery in the first degree under Penal Law § 160.15(3) and felony murder under Penal Law § 125.25(3).   The sentences imposed on the two robbery counts must run concurrently because those crimes were committed through the same act or omission (see § 70.25[2] ).   Moreover, the sentence imposed on the count of robbery in the first degree under Penal Law § 160.15(1) must run concurrently with that imposed on the count of felony murder inasmuch as the indictment did not specify which of the two counts of robbery in the first degree served as the predicate for the charge of felony murder (see People v. Parks, 95 N.Y.2d 811, 814-815, 712 N.Y.S.2d 429, 734 N.E.2d 741;  People v. Riley, 309 A.D.2d 879, 880, 765 N.Y.S.2d 890, lv. denied 1 N.Y.3d 633, 777 N.Y.S.2d 31, 808 N.E.2d 1290).   We therefore modify the judgment by directing that the sentence imposed on count five charging robbery in the first degree under Penal Law § 160.15(1) shall run concurrently with the sentences imposed on count one charging felony murder and count four charging robbery in the first degree under Penal Law § 160.15(3).

Finally, the sentence as modified is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by directing that the sentence imposed on count five of the indictment shall run concurrently with the sentences imposed on counts one and four of the indictment and as modified the judgment is affirmed.

MEMORANDUM: