People v. Gardner

Appellate Division of the Supreme Court of New York

People v. Gardner

281 A.D.2d 558, 723 N.Y.S.2d 41, 2001 N.Y. App. Div. LEXIS 2633

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 19, 2001

StatusPublished

Cited by2 cases

This text of 281 A.D.2d 558 (People v. Gardner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Gardner, 281 A.D.2d 558, 723 N.Y.S.2d 41, 2001 N.Y. App. Div. LEXIS 2633 (N.Y. Ct. App. 2001).

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Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Braun, J.), rendered June 9, 1999, convicting him of robbery in the first degree, sexual abuse in the first degree (three counts), and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The complainant testified that the defendant pressed a round object, which she believed to be a gun, up against her rib area, and said, “Don’t scream or I’ll shoot you” or “Don’t scream or I’ll kill you.” This evidence was sufficient to establish that the defendant displayed what appeared to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm within the meaning of Penal Law § 160.10 (2) (b) (see, People v Lopez, 73 NY2d 214; People v Baskerville, 60 NY2d 374; People v Austin, 152 AD2d 590).

The imposition of consecutive terms of imprisonment upon the defendant’s convictions of robbery in the first degree and sexual abuse in the first degree was proper. Although these crimes took place over a continuous course of activity, they constituted separate and distinct acts, and none of the completed offenses were a material element of another offense (see, People v Brown, 80 NY2d 361; People v Whiting, 182 AD2d 732). Thus, concurrent sentences were not mandated.

The defendant’s remaining contentions are unpreserved for appellate review. O’Brien, J. P., Friedmann, H. Miller and Schmidt, JJ., concur.

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—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Braun, J.), rendered June 9, 1999, convicting him of robbery in the first degree, sexual abuse in the first degree (three counts), and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The complainant testified that the defendant pressed a round object, which she believed to be a gun, up against her rib area, and said, “Don’t scream or I’ll shoot you” or “Don’t scream or I’ll kill you.” This evidence was sufficient to establish that the defendant displayed what appeared to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm within the meaning of Penal Law § 160.10 (2) (b) (see, People v Lopez, 73 NY2d 214; People v Baskerville, 60 NY2d 374; People v Austin, 152 AD2d 590).

The imposition of consecutive terms of imprisonment upon the defendant’s convictions of robbery in the first degree and sexual abuse in the first degree was proper. Although these crimes took place over a continuous course of activity, they constituted separate and distinct acts, and none of the completed offenses were a material element of another offense (see, People v Brown, 80 NY2d 361; People v Whiting, 182 AD2d 732). Thus, concurrent sentences were not mandated.

The defendant’s remaining contentions are unpreserved for appellate review. O’Brien, J. P., Friedmann, H. Miller and Schmidt, JJ., concur.

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Bluebook (online)

281 A.D.2d 558, 723 N.Y.S.2d 41, 2001 N.Y. App. Div. LEXIS 2633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gardner-nyappdiv-2001.

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