PEOPLE v. LYDE

Reset A A Font size: Print

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

The PEOPLE, etc., respondent, v. Leval LYDE, appellant.

Decided: February 22, 1999

CORNELIUS J. O'BRIEN, J.P., DANIEL W. JOY, GABRIEL M. KRAUSMAN and DANIEL F. LUCIANO, JJ. Richard L. Herzfeld, New York, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie, Ann Bordley, and Tamar Gribetz of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Harkavy, J.), rendered June 14, 1993, convicting him of criminal possession of a weapon in the second degree (two counts), assault in the second degree, and reckless endangerment in the fifth degree, upon a jury verdict, and sentencing him to indeterminate terms of 5 to 15 years imprisonment on each of the convictions of criminal possession of a weapon in the second degree, to run consecutively to each other, and indeterminate terms of 2 1/3 to 7 years imprisonment on the convictions of assault in the second degree and reckless endangerment in the fifth degree, to run concurrently to each other but consecutively to the sentences imposed on the other convictions.

ORDERED that the judgment is modified, on the law, by deleting the provisions that certain of the sentences shall run consecutively and substituting therefor a provision that all of the sentences shall run concurrently with one another;  as so modified, the judgment is affirmed.

The defendant's challenges to certain comments made by the prosecutor during summation are without merit.   The comments in question constituted fair response to the defense summation (see, People v. Rivera, 158 A.D.2d 723, 552 N.Y.S.2d 171) and thus were proper.

 Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).   Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500).   Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15[5] ).

 We find, however, that the sentencing court erred in imposing consecutive sentences.   The evidence at trial established that all of the convictions arose out of a single, contemporaneous incident;  thus, the sentences must run concurrently (see, Penal Law § 70.25[2];  People v. Velez, 206 A.D.2d 554, 555, 615 N.Y.S.2d 59).

The defendant's remaining contentions are without merit or do not require reversal.

MEMORANDUM BY THE COURT.

Copied to clipboard