People v. Underwood

52 N.Y.2d 882 (1981)

The People of the State of New York, Respondent, v. Benjamin Underwood, Appellant.

Court of Appeals of the State of New York.

Argued December 16, 1980.

Decided January 15, 1981.

Barry M. Fallick for appellant.

Mario Merola, District Attorney (Harold Kenneth King, Jr., and Timothy J. McGinn of counsel), for respondent.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.

MEMORANDUM.

The order of the Appellate Division should be modified to provide that the sentences for robbery and assault run concurrently and, as so modified, affirmed.

Defendant was arrested in connection with an incident in which the victim was first approached by two men at the door to her apartment. The victim was knocked unconscious by her assailants and awoke moments later to *883 see defendant kneeling on top of her and choking her. At some time during the incident the assailants took money and keys from their victim. They then fled when neighbors were alerted by the commotion.

Defendant was convicted of both robbery in the first degree (Penal Law, § 160.15) and assault in the first degree (Penal Law, § 120.10, subd 3) and consecutive sentences were imposed. Inasmuch as the People are unable to point to any testimony or evidence which would support the view that the offenses of which defendant stands convicted involved disparate or separate acts, the sentences must run concurrently (Penal Law, § 70.25, subd 2).

Order modified in accordance with the memorandum herein and, as so modified, affirmed.