People v. Martinez

100 A.D.3d 405, 953 N.Y.S.2d 495

Opinion

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]). Concur— Andrias, J.E, Saxe, Moskowitz, Abdus-Salaam and ManzanetDaniels, JJ.