People v. Huston

Appellate Division of the Supreme Court of New York

People v. Huston

187 A.D.2d 275, 589 N.Y.S.2d 434, 1992 N.Y. App. Div. LEXIS 12676

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

DecidedNovember 5, 1992

StatusPublished

Cited by1 cases

This text of 187 A.D.2d 275 (People v. Huston) 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. Huston, 187 A.D.2d 275, 589 N.Y.S.2d 434, 1992 N.Y. App. Div. LEXIS 12676 (N.Y. Ct. App. 1992).

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Opinion

Judgment, Supreme Court, New York County (Richard Lowe, III, J.), rendered February 20, 1991, convicting defendant, after a jury trial, of two counts of murder in the second degree, attempted robbery in the first degree, and criminal possession of a weapon in the second and third degrees, and sentencing him to concurrent terms of 25 years to life for each murder count, 4 to 8 years for the attempted robbery count, and 3 ¥2 to 7 years for the third degree weapon possession count and a consecutive term of 7 ¥2 to 15 years for the second degree weapon possession count, unanimously modified, on the law, to provide that all sentences are to run concurrently.

We reject defendant’s largely unpreserved argument that the prosecutor’s summation arguments improperly denigrated the defense, accused the defense witnesses of lying and [276]*276vouched for the credibility of its only eyewitness. Also merit-less is defendant’s argument that the court improperly sentenced defendant by utilizing a presentence report which did not include an interview with defendant. The court was under no obligation to adjourn sentencing in order to grant defendant an interview where defendant claimed at sentencing that he refused to be interviewed only because he believed the interview concerned an unrelated probation violation (see, People v Marin, 157 AD2d 804, lv denied 76 NY2d 791). Furthermore, at sentencing defendant was afforded an opportunity to provide information to the court which he could have provided in an interview (People v Bonadie, 151 AD2d 686, lv denied 74 NY2d 845).

Since there was no proof that defendant possessed a weapon with intent to use it unlawfully against another at any time other than at the moment defendant shot the deceased, the court erred in imposing a consecutive sentence for criminal possession of a weapon in the second degree (Penal Law § 70.25 [2]; People v Ellis, 139 AD2d 662, lv denied 72 NY2d 918; cf., People v Robbins, 118 AD2d 820). Concur—Sullivan, J. P., Milonas, Rosenberger and Asch, JJ.

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Judgment, Supreme Court, New York County (Richard Lowe, III, J.), rendered February 20, 1991, convicting defendant, after a jury trial, of two counts of murder in the second degree, attempted robbery in the first degree, and criminal possession of a weapon in the second and third degrees, and sentencing him to concurrent terms of 25 years to life for each murder count, 4 to 8 years for the attempted robbery count, and 3 ¥2 to 7 years for the third degree weapon possession count and a consecutive term of 7 ¥2 to 15 years for the second degree weapon possession count, unanimously modified, on the law, to provide that all sentences are to run concurrently.

We reject defendant’s largely unpreserved argument that the prosecutor’s summation arguments improperly denigrated the defense, accused the defense witnesses of lying and [276]*276vouched for the credibility of its only eyewitness. Also merit-less is defendant’s argument that the court improperly sentenced defendant by utilizing a presentence report which did not include an interview with defendant. The court was under no obligation to adjourn sentencing in order to grant defendant an interview where defendant claimed at sentencing that he refused to be interviewed only because he believed the interview concerned an unrelated probation violation (see, People v Marin, 157 AD2d 804, lv denied 76 NY2d 791). Furthermore, at sentencing defendant was afforded an opportunity to provide information to the court which he could have provided in an interview (People v Bonadie, 151 AD2d 686, lv denied 74 NY2d 845).

Since there was no proof that defendant possessed a weapon with intent to use it unlawfully against another at any time other than at the moment defendant shot the deceased, the court erred in imposing a consecutive sentence for criminal possession of a weapon in the second degree (Penal Law § 70.25 [2]; People v Ellis, 139 AD2d 662, lv denied 72 NY2d 918; cf., People v Robbins, 118 AD2d 820). Concur—Sullivan, J. P., Milonas, Rosenberger and Asch, JJ.

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Bluebook (online)

187 A.D.2d 275, 589 N.Y.S.2d 434, 1992 N.Y. App. Div. LEXIS 12676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-huston-nyappdiv-1992.

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