PEOPLE v. FULLAN (1997)

ORDERED that the judgment is modified, on the law, by (1) reversing the defendant's convictions for attempted kidnapping in the first degree and for murder in the second degree under count two of the indictment, vacating the sentences imposed thereon, and dismissing those counts of the indictment, and (2) providing that the sentences imposed for murder in the second degree under count one of the indictment and robbery in the first degree shall run concurrently to each other;  as so modified, the judgment is affirmed.

 Consistent with our holding in the codefendant's appeal, we agree with the defendant's contention that attempted kidnapping in the first degree is not a cognizable crime under Penal Law § 135.25(3) (see, People v. Esquilin, 159 A.D.2d 632, 552 N.Y.S.2d 953).   Thus, the defendant's convictions for attempted kidnapping in the first degree and murder in the second degree where the underlying felony was attempted kidnapping must be reversed, and those counts of the indictment dismissed.

 Moreover, as in People v. Esquilin, supra, at 632, 552 N.Y.S.2d 953, under the facts of this case, the sentencing court erred in imposing consecutive sentences for intentional murder and robbery in the first degree, as those convictions were essentially based upon the same acts (see, Penal Law § 70.25;  see also, People v. Anderson, 123 A.D.2d 770, 507 N.Y.S.2d 246).   Thus, the sentences imposed have been modified accordingly.

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.