PEOPLE v. GOLDRING (1997)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Thomas, J.), rendered July 5, 1995, convicting him of assault in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and sentencing him to consecutive terms of 7 1/2 to 15 years imprisonment for assault in the first degree and 4 to 8 years imprisonment for criminal possession of a weapon in the second degree.

ORDERED that the judgment is modified, on the law, by providing that the sentences are to run concurrently;  as so modified, the judgment is affirmed.

 Although the prosecution did not request a hearing pursuant to People v. Ventimiglia, 52 N.Y.2d 350, 359-360, 438 N.Y.S.2d 261, 420 N.E.2d 59, reversal is not warranted in this case.   We agree with the defendant's assertion that the prosecution should have sought a pretrial determination as to the admissibility of evidence of uncharged crimes alleged to have been committed by the defendant, but the evidence was clearly admissible in this case, and the failure to obtain such a determination did not prejudice the defendant (see, People v. Ramos, 220 A.D.2d 330, 633 N.Y.S.2d 12).   The evidence that the defendant sold drugs for the victim was directly relevant to his motive for the crime (see, People v. Molineux, 168 N.Y. 264, 61 N.E. 286;  People v. Zimmerman, 212 A.D.2d 821, 624 N.Y.S.2d 614), and was necessary to provide a complete and accurate picture of the events which led to its commission (see, People v. Montanez, 41 N.Y.2d 53, 59, 390 N.Y.S.2d 861, 359 N.E.2d 371).   Furthermore, the evidence was not used by the prosecution to show that the defendant had a propensity to commit the crimes, and its probative value outweighed its potential for prejudice (see, People v. Ventimiglia, supra, at 359-360, 438 N.Y.S.2d 261, 420 N.E.2d 59).

 The trial court erred, however, in imposing consecutive sentences for the convictions of assault in the first degree and criminal possession of a weapon in the second degree (see, Penal Law § 70.25[2] ).   The defendant's possession of a weapon was also an element of the assault charge, and here both crimes were part of the same transaction (see, Penal Law § 120.10[1];  People v. Crespo, 188 A.D.2d 483, 484, 591 N.Y.S.2d 57;  People v. Banks, 208 A.D.2d 759, 760, 617 N.Y.S.2d 796).

MEMORANDUM BY THE COURT.