PEOPLE v. BLACK (1998)

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Kuffner, J.), rendered April 3, 1995, convicting him of attempted murder in the second degree (eight counts), criminal possession of a weapon in the second degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

 The evidence at trial showed that the defendant, with the intent of causing the death of a rival drug dealer, went to a social club where his rival was located, and fired numerous shots from two semi-automatic weapons, injuring eight people.   He was convicted, inter alia, of eight counts of attempted murder in the second degree, and sentenced to eight consecutive indeterminate terms of six to twelve years imprisonment for each count.   He challenges the legality of the consecutive sentences, contending that since his intent to kill his rival was an overlapping material element of each count of attempted murder, Penal Law § 70.25(2) required that the sentences be concurrent.   We disagree.

 The fact that the defendant's mental state was the same for each of the attempted murders is not determinative of the issue of whether consecutive sentences could be imposed.  “ ‘The test is not whether the criminal intent is one and the same and inspiring the whole transaction, but rather whether separate acts have been committed with the requisite criminal intent’ ” (People v. Day, 73 N.Y.2d 208, 212, 538 N.Y.S.2d 785, 535 N.E.2d 1325, quoting People v. Baker, 27 A.D.2d 269, 272, 278 N.Y.S.2d 309, affd. 19 N.Y.2d 982, 281 N.Y.S.2d 527, 228 N.E.2d 695).   Although each attempted murder in this case occurred in the course of one extended transaction, each attempt was nevertheless caused by the defendant's affirmative act of firing shots in the direction of each victim.   Accordingly, each offense was rendered separable and distinct from the transaction as a whole, such that consecutive sentences were not proscribed by Penal Law § 70.25(2) (see, People v. Brathwaite, 63 N.Y.2d 839, 842, 482 N.Y.S.2d 253, 472 N.E.2d 29;  People v. Ramos, 205 A.D.2d 404, 613 N.Y.S.2d 879;  People v. Sumpter, 203 A.D.2d 605, 610 N.Y.S.2d 614).   Moreover, the sentence imposed was not excessive under the circumstances (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.