People v Martinez

People v Martinez 2012 NY Slip Op 07375 Decided on November 8, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 8, 2012
Andrias, J.P., Saxe, Moskowitz, Abdus-Salaam, Manzanet-Daniels, JJ.
8411 5911/10

[*1]The People of the State of New York, Respondent,

v

Juan Martinez, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Joanne
Legano Ross of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sean T.
Masson of counsel), for respondent.

Judgment, Supreme Court, New York County (Larry R. Stephen, J.), rendered January 26, 2011, as amended February 16, 2011, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree and attempted robbery in the third degree, and sentencing him, as a second felony offender, to consecutive terms of 2 to 4 years on each count, unanimously modified, on the law, to the extent of directing that the sentences run concurrently, and otherwise affirmed.

As the People concede, the record, consisting of the accusatory instrument and the plea allocution, does not disclose sufficient facts from which it could be concluded that
defendant's possession of a knife was complete before the attempted robbery in which defendant used it. Accordingly, the concurrent sentences were required (see Penal Law § 70.25[2]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 8, 2012, a.m.

CLERK