PEOPLE v. SWANTON (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by directing that all of the sentences imposed shall run concurrently and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25 [1]), assault in the first degree (§ 120.10 [4]), and two counts of criminal use of a firearm in the first degree (§ 265.09 [1] [a], [b]). County Court directed that the sentences for murder in the second degree and assault in the second degree were to run consecutively to each other, and concurrently with the sentences for the other crimes of which defendant was convicted.

Contrary to defendant's contention, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]). In particular, contrary to defendant's contention, the jury's rejection of the justification defense is not contrary to the weight of the evidence (see People v. Hollis, 219 A.D.3d 1686, 1688-1689, 197 N.Y.S.3d 629 [4th Dept. 2023], lv denied 40 N.Y.3d 1039, 200 N.Y.S.3d 772, 223 N.E.3d 1248 [2023]). The jury could reasonably have found, based on the testimony of the People's witnesses and the physical evidence, that the victims were not using or attempting to use deadly physical force when defendant shot them (see generally People v. St. John, 215 A.D.3d 1267, 1268, 187 N.Y.S.3d 882 [4th Dept. 2023], lv denied 40 N.Y.3d 999, 197 N.Y.S.3d 106, 219 N.E.3d 867 [2023]).

We agree with defendant, however, that the court erred in directing that the sentence for the count of assault in the first degree run consecutively to the sentence imposed on the count of murder in the second degree because the murder was the predicate felony for the felony assault (see Penal Law § 70.25 [2]; People v. Brown, 204 A.D.3d 1390, 1394, 166 N.Y.S.3d 808 [4th Dept. 2022], lv denied 39 N.Y.3d 985, 181 N.Y.S.3d 190, 201 N.E.3d 807 [2022]; People v. Miller, 148 A.D.3d 1689, 1690, 50 N.Y.S.3d 200 [4th Dept. 2017], lv denied 29 N.Y.3d 1083, 64 N.Y.S.3d 173, 86 N.E.3d 260 [2017]). We therefore modify the judgment by directing that all of the sentences imposed shall run concurrently.

We have reviewed defendant's remaining contentions and conclude that none warrants reversal or further modification of the judgment.