People v. Sinkler

288 A.D.2d 844, 732 N.Y.S.2d 608, 2001 N.Y. App. Div. LEXIS 10635

Opinion

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court for resentencing in accordance with the following Memorandum: Defendant was convicted following a jury trial of attempted murder in the second degree (Penal Law §§ 20.00, 110.00, 125.25 [1]), kidnapping in the second degree (Penal Law §§ 20.00, 135.20), assault in the first degree (Penal Law §§ 20.00, 120.10 [1]), and two counts of robbery in the first degree (Penal Law §§ 20.00, 160.15 [3], [4]). Defendant contends that the People improperly bolstered the complainant’s testimony with evidence of prior consistent statements. That contention is unpreserved for our review (see, People v Love, 57 NY2d 1023, 1025; People v West, 56 NY2d 662, 663; People v Alshoaibi, 273 AD2d 871, 872, Iv denied 95 NY2d 960), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]).

Although not raised by defendant, we conclude that the sentence imposed on the count of kidnapping in the second degree must be vacated. There is a discrepancy between the sentencing transcript and the certificate of conviction with respect to whether that sentence would be consecutive to the sentence imposed on the count of attempted murder in the second degree only, or whether it also would be consecutive to the sentence imposed on the count of robbery in the first degree under Penal Law § 160.15 (3). We modify the judgment by vacating the sentence imposed on the kidnapping count, and we remit the matter to Supreme Court for resentencing on that count (see, People v Shand, 280 AD2d 943, 944, lv denied 96 NY2d 834; see also, People v Ingram, 263 AD2d 959, 960). (Appeal from Judgment of Supreme Court, Monroe County, Galloway, J. — Attempted Murder, 2nd Degree.) Present — Pigott, Jr., P. J., Pine, Hurlbutt, Burns and Gorski, JJ.