PEOPLE v. CUMBO (1997)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered September 28, 1995, as amended October 25, 1995, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment as amended is modified, on the law, by providing that the term of imprisonment imposed for assault in the second degree shall run concurrently with the terms of imprisonment imposed for murder in the second degree and criminal possession of a weapon in the second degree;  as so modified, the judgment as amended is affirmed.

The defendant's contentions regarding the improper admission of hearsay statements are unpreserved for appellate review (see, People v. Manuli, 156 A.D.2d 388, 548 N.Y.S.2d 340, 341) and, in any event, are meritless.

As correctly conceded by the People, however, the term of imprisonment imposed for assault in the second degree should run concurrently with the other terms of imprisonment imposed since it is impossible to determine which of the other felonies served as the predicate for the conviction of assault in the second degree (see, Penal Law § 70.25[2];  People v. Ahedo, 229 A.D.2d 588, 646 N.Y.S.2d 520).

MEMORANDUM BY THE COURT.