People v James

People v James 2007 NY Slip Op 03965 [40 AD3d 281] May 8, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 11, 2007

The People of the State of New York, Respondent,
v
Demetrius James, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Kerry Elgarten of counsel), for appellant.

Robert T. Johnson, Bronx (Bryan C. Hughes of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Michael A. Gross, J.), rendered March 30, 2005, convicting defendant, after a jury trial, of manslaughter in the second degree and criminal possession of a weapon in the second degree, and sentencing him to consecutive terms of 5 to 15 years and 15 years, respectively, unanimously affirmed.

The court properly declined to submit criminal possession of a weapon in the fourth degree as a lesser included offense since there was no reasonable view of the evidence, viewed most favorably to defendant, that he possessed the weapon without intent to use it unlawfully against another person. Defendant was guilty of second-degree weapon possession even under his own version of the facts (cf. People v Durand, 188 AD2d 747 [1992], lv denied 81 NY2d 884 [1993]).

The court properly imposed consecutive sentences. Defendant possessed the weapon in anticipation of using it unlawfully, as well as actually using it to intimidate the victim and his cousin. Hence, the crime of criminal possession of a weapon in the second degree was completed before the victim was shot. Defendant's subsequent reckless conduct involving the weapon, which caused the death of the victim, constituted a separate event permitting the imposition of consecutive sentences (see People v Salcedo, 92 NY2d 1019 [1998]; People v Sell, 283 AD2d 920, 922 [2001], lv denied 96 NY2d 867 [2001]; People v Perez, 278 AD2d 2 [2000], [*2]lv denied 96 NY2d 804 [2001]; compare People v Hamilton, 4 NY3d 654 [2005]).

We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P., Saxe, Sullivan, Nardelli and Gonzalez, JJ.