People v. Almeida

39 N.Y.2d 823 (1976)

The People of the State of New York, Respondent, v. Eduardo Almeida, Appellant.

Court of Appeals of the State of New York.

Argued April 2, 1976.

Decided May 11, 1976.

Ursula Bentele and William E. Hellerstein for appellant.

Mario Merola, District Attorney (Vincent L. Gambale of counsel), for respondent.

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

MEMORANDUM.

A search of defendant's person revealed that he was in possession of 28 glassine envelopes containing *824 heroin and a knife with a 10-inch blade. Defendant, after a jury trial, was convicted of criminal possession of a controlled substance in the seventh degree and possession of a dangerous weapon. He was sentenced to consecutive terms of one-year imprisonment on the narcotics charge and nine-months imprisonment on the weapons count. Defendant contends that this sentence violates subdivision 3 of section 70.25 of the Penal Law, which states that "[w]here consecutive definite sentences of imprisonment * * * are imposed on a person for offenses which were committed as parts of a single incident or transaction, the aggregate of the terms of such sentences shall not exceed one year." We disagree. Although the defendant was discovered to be in possession of both the narcotics and the weapon at the same time, he committed two separate and distinct offenses. In no measure can these two dissimilar possessory offenses be construed as arising from the same criminal transaction. (People ex rel. Maurer v Jackson, 2 N.Y.2d 259, 264; People v Frazier, 67 Misc 2d 376.) To extend the statute to such unrelated offenses would reduce the deterrent effect of the consecutive sentences. (Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law, § 70.25, p 236.)

The order of the Appellate Term should be affirmed.

Order affirmed in a memorandum.