People v. Pendese

191 A.D.2d 220, 594 N.Y.S.2d 244, 1993 N.Y. App. Div. LEXIS 2190

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 1993
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Jeffrey Atlas, J.), rendered August 8, 1990, convicting defendant, after jury trial, of robbery in the first degree, robbery in the second degree, and reckless endangerment in the first degree, and sentencing him to concurrent terms of 6 to 18 years and 5 to 15 years, respectively, on the robbery counts, and a consecutive term of 2 to 6 years on the reckless endangerment count, unanimously modified, on the law, so as to provide that the sentence imposed on the reckless endangerment count run concurrently with the sentences imposed on the robbery counts, and otherwise affirmed.

Defendant’s claims of error by the trial court in its charge to the jury are unpreserved by appropriate and timely exception for appellate review as a matter of law (CPL 470.05; People v Thomas, 50 NY2d 467). In any event, the charge considered as a whole, while not a model for others, conveyed the appropriate legal principles (People v Hurk, 165 AD2d 687, 688, lv denied 76 NY2d 1021).

As the force encompassed by the reckless endangerment count was charged to the jury as a material element of the robbery counts, the sentence on the reckless endangerment count should have been imposed to run concurrently with the sentences imposed on the robbery counts (People v Smiley, 121 AD2d 274, 275, lv denied 68 NY2d 817).

We have considered defendant’s additional arguments and find them to be without merit. Concur — Murphy, P. J., Sullivan, Rosenberger, Asch and Rubin, JJ.