PEOPLE v. LaSALLE

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Andrew LaSALLE, appellant.

Decided: February 22, 1999

GUY JAMES MANGANO, P.J., THOMAS R. SULLIVAN, DANIEL W. JOY and MYRIAM J. ALTMAN, JJ. Kevin P. Gilleece, White Plains, N.Y., for appellant. Jeanine Pirro, District Attorney, White Plains, N.Y. (John M. Collins and Maryanne Luciano of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Colabella, J.), rendered October 30, 1995, convicting him of sodomy in the first degree, criminal use of a firearm in the first degree, assault in the second degree, criminal possession of a weapon in the third degree, unlawful imprisonment, and assault in the third degree, after a nonjury trial, and imposing consecutive indeterminate terms of 7 1/212 to 15 years imprisonment for sodomy in the first degree and criminal use of a firearm in the first degree, to run concurrently with indeterminate terms of 2 to 4 years imprisonment for assault in the second degree and criminal possession of a weapon in the third degree, an indeterminate term of 1 1/212 to 3 years imprisonment for unlawful imprisonment, and a determinate term of 1 year of imprisonment for assault in the third degree.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof imposing consecutive indeterminate terms of imprisonment and substituting therefor a provision that all of the sentences shall run concurrently to one another;  as so modified, the judgment is affirmed.

The defendant's contention that his conviction is not supported by legally sufficient evidence is unpreserved for appellate review (see, People v. Vega, 183 A.D.2d 864, 584 N.Y.S.2d 105).   In any event, 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] ).

However, the court erred in imposing consecutive sentences for the defendant's convictions of sodomy in the first degree and criminal use of a firearm in the first degree since both convictions arose out of a single incident (see, People v. Velez, 206 A.D.2d 554, 615 N.Y.S.2d 59;  People v. Terry, 104 A.D.2d 572, 479 N.Y.S.2d 278).

MEMORANDUM BY THE COURT.

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