People v. Nuness

275 A.D.2d 915, 715 N.Y.S.2d 174, 2000 N.Y. App. Div. LEXIS 9663

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 29, 2000
• Status: Published

Opinion

—Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: This Court affirmed defendant’s judgment of conviction (159 AD2d 970, lv denied 76 NY2d 862) and thereafter granted defendant’s motion for a writ of error coram nobis (266 AD2d 934). Upon reviewing the appeal de novo, we agree with defendant that, in light of his conviction of two counts of robbery in the first degree (Penal Law § 160.15 [4]), his conviction of the noninclusory concurrent counts of criminal use of a firearm in the first degree (Penal Law § 265.09 [1] [b]) must be reversed and the sentences imposed thereon vacated (see, People v Brown, 67 NY2d 555, 560-561, cert denied 479 US 1093). Although defendant’s contention is not preserved for our review, we modify the judgment as a matter of discretion in the interest of justice by reversing defendant’s conviction of criminal use of a firearm in the first degree under counts three and four of the indictment, vacating the sentences imposed thereon and dismissing those counts of the indictment. (Appeal from Judgment of Supreme Court, Erie County, Marshall, J.— Robbery, 1st Degree.) Present — Pigott, Jr., P. J., Green, Hayes, Kehoe and Lawton, JJ.