People v. Jenkins

232 A.D.2d 504, 648 N.Y.S.2d 352, 1996 N.Y. App. Div. LEXIS 10191

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (George, J.), rendered June 14, 1994, convicting him of robbery in the first degree (four counts) and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, so as to provide that the term of imprisonment imposed for the conviction of criminal possession of a weapon in the second degree shall run concurrently to the terms of imprisonment imposed for the robbery convictions; as so modified, the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it is legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt is not against the weight of the evidence (CPL 470.15 [5]).

However, the sentence imposed for the conviction of criminal possession of a weapon in the second degree should have been made to run concurrently to the sentences imposed upon the robbery convictions, since possession of the weapon constituted a "material element” of the robbery offenses (see, Penal Law § 70.25 [2]; People v Day, 73 NY2d 208). Accordingly, the judgment is modified to that extent.

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Bracken, J. P., Thompson, Goldstein and McGinity, JJ., concur.